Update on Bill 87 (Ontario) – The Protecting Patients Act, 2016

Bill 87 – The Protecting Patients Act, 2016

Bill 87 was introduced by the province in December 2016 to amend several different health statutes, including the Regulated Health Professions Act, 1991 (RHPA).

This is a summary and discussion of select proposed amendments to the RHPA, which will affect the 26 health profession regulators (Colleges) established under that statute.[1] I have made comments throughout, and at the end of this post. 

Second Reading Completed

As of April 4, 2017, Bill 87 has undergone second reading, meaning that it has been debated by the legislature in principle, and has now been referred to standing committee, during which time public hearings may be held and amendments considered. The debate during second reading was reportedly closed early.

Amendments to Regulated Health Professions Act

The proposed amendments to the RHPA followed the release of the 2016 report[2] of the Minister’s sexual abuse task force, which set out many recommendations, not all of which were incorporated into the current bill.

Broadly speaking, the proposed amendments to the RHPA can be categorized as follows:

• Sexual abuse amendments
• Increased Ministerial powers
• Power to make interim suspensions
• Changes to complaints process
• Enhanced transparency of College information
• Increased reporting obligations of members

Sexual Abuse Amendments

The most direct response to the Minister’s Task Force is the set of proposed amendments respecting sexual abuse of patients by health professionals, intended to strengthen and reinforce zero tolerance of sexual abuse. Bill 87 clarifies the ways in which Colleges are to carry out their various investigative and hearing functions relating to sexual abuse.

First, Bill 87 expands the categories of sexual abuse that will result in mandatory revocation of a member’s certificate of registration

Under current law, “sexual abuse” is defined as

• sexual intercourse or other forms of physical sexual relations between the member and the patient,
• touching, of a sexual nature, of the patient by the member, or
• behaviour or remarks of a sexual nature by the member towards the patient.

At present, disciplinary panels must revoke a member’s certificate of registration if the member is found to have committed any of the following specific acts of sexual abuse:

• sexual intercourse,
• genital to genital, genital to anal, oral to genital, or oral to anal contact,
• masturbation of the member by, or in the presence of, the patient,
• masturbation of the patient by the member,
• encouragement of the patient by the member to masturbate in the presence of the member.

If a panel finds the member committed other acts of sexual abuse, including sexual touching, it currently has discretion to impose a lesser penalty than revocation. In practice, disciplinary panels often do revoke for lesser findings, but have also been criticized when they do not.

Under Bill 87, any sexual touching of the patient’s genitals, anus, breasts or buttocks will also result in mandatory revocation.

Other proposed amendments relevant to sexual abuse include:

• The Minister may make regulations defining further acts of sexual abuse that must result in mandatory revocation.
• “Patient” is to be defined as an individual who was a patient of the member, in the ordinary sense of the word, within the last year or a longer time frame as specified by regulation, or someone determined to be a patient under government regulation. Currently, the term is not defined. In determining whether sexual abuse took place, panels consider whether a concurrent practitioner-patient relationship existed.Sexual contact taking place after the professional relationship ended may still have been found to constitute sexual misconduct, but not technically sexual abuse.
• If the Discipline Committee finds that the member committed an act of professional misconduct by sexually abusing a patient and mandatory revocation is not applicable, the panel must at minimum reprimand the member and impose a suspension on the member’s certificate of registration.
• Terms and conditions imposed on a certificate of registration cannot be gender-based. Currently, gender-based restrictions are relatively common in orders of the ICR and Discipline Committees; that is, the practitioner may often continue to practise with members of the opposite gender as the one the member is alleged or found to have sexually abused.
• Sexual abuse complainants will be eligible for funding for therapy or counseling upon filing a complaint. Previously, eligibility was contingent on a finding by the Discipline Committee, or as prescribed by Council regulation.
• The Minister may prescribe purposes for funding other than therapy or counseling, in connection with allegations of sexual abuse.
• Increased monetary penalties for a facility’s failure to report suspected sexual abuse of a patient by a member, from $25,000 for individuals to not more than $50,000 (upon conviction) and from $50,000 for corporations to $200,000.

Finally, Bill 87 requires a reprimand and revocation if the member:

• has been found guilty of an offence prescribed by government regulation that is relevant to the member’s suitability to practise; or
• if the governing body of a health profession outside Ontario has found that the member committed an act of professional misconduct that would, in the opinion of the panel, be an act of professional misconduct/sexual abuse that requires mandatory revocation under the RHPA.

Increased Ministerial Powers

The bill provides greater power to the Minister of Health and Long-Term Care (Minister) to specify by regulation the composition, selection, appointment, quorum and terms of office statutory committees, as well as member qualifications. Currently, Colleges set these requirements and manage these tasks under their by-laws, and by operational practice. Bill 87 moves control of such committee governance to the Minister, and the proposed revisions do not stipulate consultation with the Colleges before such regulations are passed.

The Minister will also have the power to require personal and personal health information about Colleges’ members if the Minister is requesting reports and information from a College in order to determine if the College is carrying out its legislative duties and objects, and whether the Minister should exercise the Minister’s legislative powers under the RHPA and other specified legislation. The bill does specify parameters on this power: reports and information given to the Minister shall not contain personal information or personal health information if other information is sufficient for the Minister’s purposes, and shall not contain more personal information or personal health information than is necessary for the Minister’s purposes.

Along with other statutory revisions, such as the previous amendment allowing government to appoint a supervisor over a College where the Minister considers it appropriate and necessary, these measures represent additional limits on Colleges’ self regulation. This reflects a developing trend across virtually all jurisdictions in which professions traditionally regulated themselves. Increasingly, government and the public are demanding more input into the ways that professions are regulated, enhanced information, transparency, accountability and responsiveness. 

Power to Make Interim Suspensions

Colleges have been criticized for not imposing immediate restrictions (terms, conditions or suspensions) upon members’ certificates of registration, where concerning information has been received.

In fact, the current law does not permit Colleges’ ICR Committees to make such orders until they have referred allegations to the Discipline or Fitness to Practice Committee, once they have completed their investigation into the competence, conduct and/or capacity of the member.

Regardless of how efficiently the ICR Committee carries out its work, investigations naturally take some time to complete. Investigators must collect relevant information, including documents, other evidence, and interviews; experts may need to be retained; warrants or commissions may need to be sworn and executed; and members are by statute and by procedural fairness entitled to be given notice and the opportunity to make submissions before a referral Discipline or Fitness to Practise can be made.

Only then, and only if the specified legal requirements are met (legal threshold plus notice and opportunity to make submissions) can the ICR Committee direct the Registrar to impose interim conditions or a suspension upon the member’s certificate of registration, pending outcome of the disciplinary or incapacity hearing. In extraordinary circumstances, when urgent intervention is required, such an order can be made by the ICR Committee without prior notice to the member, as long as the member can make submissions while the interim terms and conditions or suspension are in place.

Bill 87 amends the current interim suspension provisions in several ways.

• The ICR Committee will be permitted to make an interim order any time after information is received by complaint or report, and before completion of an investigation, if it is of the opinion that the conduct of the member or the member’s physical or mental state exposes or is likely to expose the member’s patients to harm or injury.
• If such an interim order is made:
  • the member must be given prior notice and an opportunity to respond;
  • if urgent intervention is needed, the order may be made without prior notice, as long as the member is given the opportunity to make submissions while the terms and conditions or suspension are in place;
  • the order cannot include any gender-based restrictions;
  • the matter must be investigated and prosecuted expeditiously, and the ICR Committee, Discipline or Fitness to Practise Committee is to give the matter precedence; and
  • if a subsequent disciplinary or incapacity proceeding results in a revocation, suspension, or conditions being imposed on a certificate of registration, that order is to take effect immediately despite any appeal.

Changes to Complaints Process

ICR Committees are required to investigate complaints regarding the conduct or actions of a member, unless the panel determines that the complaint is frivolous, vexatious, moot or otherwise an abuse of process, or unless the complaint is managed through the alternative dispute resolution process (ADR) set out in the legislation. Complaints may be filed by anyone, and are distinct from reports, which are more commonly filed by individuals acting in an official capacity.

Changes to the complaints process under Bill 87 include:

• complainants may request the Registrar to withdraw their complaints;
• changes to the complaints ADR process, including:
  • granting the Registrar power to adopt a proposed resolution or refer the decision to an ICR Committee panel, who may adopt the resolution or proceed with an investigation; and
  • specific time limits for completion of ADR: 60 days from the time of referral to ADR, which can be extended up to 120 days by the Registrar or ICR panel if it is in the public interest to do so.

The proposed amendments appear to be aimed at tightening the complaints process, by enhancing complainants’ participation and limiting time spent in the ADR process before either an appropriate resolution is reached, or the matter is referred back for investigation. 

Enhanced Transparency of College Information

The amount of information about regulated professionals to be made available on Colleges’ public registers (now, practically speaking, their websites) has steadily grown over the years. More recently, advocates have challenged Colleges to make public more information about cautions and remediation programs directed by their investigative committees. Once again, this trend reflects a growing demand on the part of government and the public for greater transparency of information, across all self-regulatory jurisdictions, to protect the public and permit patients to make more informed choices.

Bill 87 provides for increased transparency by requiring additional information to be posted on the Colleges’ public registers, including:

• The name of former members, and where they are deceased, the date of death, if known to the College.
• Additional outcomes of the Colleges’ ICR Committee proceedings, including cautions made in person and specified continuing education or remediation programs directed by the ICR Committee
• Dates of referrals to the Discipline Committee by the ICRC, status of the referral until resolved, and a copy of notice of specified allegations
• The result, with synopsis, of every disciplinary and incapacity proceeding (that is, regardless of whether a finding has been made)
• Notation and synopsis of acknowledgements and undertakings by members in relation to professional misconduct or incompetence
• The outcomes of premises inspections conducted by the college.
• Information that is required to be kept in the register in accordance with regulations.

Increased Reporting Obligations of Members

The bill sets out increased reporting requirements for members.

Currently, members have numerous duties to make reports to the College. Bill 87 adds the following duties, to report the following:

• memberships in other regulatory bodies that govern a profession inside or outside Ontario;
• findings of professional misconduct or incompetence from other regulatory bodies, inside or outside Ontario, including status of any appeal; and
• whether the member has been charged with an offence, any associated bail conditions, and status of the proceedings.

Comment:

Bill 87 is certain to attract significant input from all relevant parties.

Patient advocates may argue that the sexual abuse amendments do not go far enough to protect patients. The bill does not, for example, address a core recommendation from the sexual abuse task force report: the creation of a separate investigative and adjudicative unit to handle all allegations of sexual abuse, thereby removing this work from individual Colleges.

Professional advocates and associations will no doubt voice many concerns, including:

• the additional information about practitioners that the Minister will be entitled to collect;
• the reduced discretion of disciplinary panels to impose penalties less than revocation in sexual touching cases;
• the definition of “patient” to include past patients from the preceding year;
• the requirement to post all cautions in person and education and remediation programs specified by the ICR Committee on the public register; and
• the requirement to report to the College findings in other jurisdictions and criminal charges.

Professional self-regulators stand at a crucial crossroads.

On the one hand, it is difficult to argue with anything aimed at improving patient protection and consumer choice, especially at a time when the model of professional self-regulation is being slowly but surely eroded around the world, and the need to demonstrate legitimacy is concomitantly growing.

There is an argument to be made that professional regulation is a nuanced field, requiring different tools and frameworks to address risk to the public, and that regulation should not be overly prescriptive, but should instead focus on outcomes. On the flip side, public distrust of self-regulation is high. Many would argue that professions have not themselves done an adequate job of protecting the public, and that more government intervention and oversight is the only possible remedy.

It can also be argued that without some “safe harbour” for professionals to quietly address remediation of practice deficiencies, open reporting and discussion of error may be discouraged. On the other hand, transparency, enhanced public participation and consumer rights are increasingly becoming central organizing principles of the entire government, quasi-government and non-profit sector. Even a well-intentioned pushback against any of these will be perceived as protectionism and obstructionism.

It will be very interesting to monitor the progress of Bill 87 through its next stage.

 

 

 

 

[1] This post does not constitute legal advice or a full discussion of all relevant amendments to the RHPA. Regulators should consult with their counsel to determine the potential impact of Bill 87 on their operations.

[2] http://www.health.gov.on.ca/en/common/ministry/publications/reports/sexual_health/default.aspx.