Friday, June 2, 2017

Bill 87: Self Regulation, RIP

The Ontario government's Protecting Patients Act ends the health professions' self-regulation once and for all. In true Canadian fashion, it also ignores the very advice it asked of its experts.

We've all read headlines about doctors who sexually abuse their patients and somehow remain in practice. Or have their licences suspended for a certain time period, with or without restrictions around seeing patients of a single gender. Or require a chaperone to be present when seeing opposite-gender patients. Or face criminal charges but not professional sanction until after the fact. Or vice versa.

That these situations ever arise is abhorrent. Not so much because the abuse and injustice are indelible stains on the profession, though they are, but rather because in disciplining the doctors - and in almost all reported cases a doctor is the perpetrator - the College of Physicians' discipline system disregards the most important person: the victim. Understandably, the government felt a need to step in an enact important reforms.

Much has been made of Bill 87, also known as the Protecting Patients Act. It's an omnibus piece of health legislation, covering five areas of the health care system that have absolutely nothing to do with one another. Three of them - seniors' centres, nurse practitioner prescriptions, and hospital lab services - are without controversy and aren't worth going into. The fourth - mandating that doctors' offices, rather than parents, report childhood immunizations to public health units - is ultimately a resource issue. It's costly and time-consuming for doctors and their office staff to meet the new reporting requirements, so the complaints about the law were predictable and understandable.

It's the sexual abuse provisions in the law that lie at the heart of the matter, however, and the Ontario government appears to be taking the issue seriously. Those provisions include: expanding the list of offences that result in mandatory loss of licence; removing gender-specific licence restrictions; strengthening what and how the College website reports on doctors' offences; offering resources for victim counselling; and others. Moreover, the government is giving itself the authority to make appointments to College standing committees, such as the Executive, Investigations, and Discipline. And for reasons unbeknownst to anyone, the government has also given itself the authority to obtain a health professional's personal health information. Nowhere is a justification for this part of the law provided - not in the preamble, not in the transcripts of the legislature debates, not in committee - nowhere (and yes, I'm enough of a masochist to have read through them).

Other bloggers and op-ed contributors have critiqued these parts of the law, so I won't rehash the arguments. I have two points to make that I haven't seen addressed elsewhere, however.

First, the government convened an independent panel of experts to provide a thorough analysis and set of recommendations to solve the problem of patient sexual abuse. The report is worth a read to anyone. It's comprehensive, patient-focused, and extremely thoughtful. The panel called for a new body to investigate sexual-abuse complaints on an expedited basis, earlier and mandatory involvement of law enforcement, and an abundance of resources to get victims the help they need and correct the imbalance of power between perpetrators and victims.

As is so often the case with Canadian governments, however, precious few of the recommendations made it into the law. It means many hours of careful thought and hard work have gone to waste, and the new law is guaranteed not to solve the problems, or at least address them only superficially. For an issue as important as this (and God knows the transcripts prove that politicians of all stripes can recite the phrase "zero tolerance" ad nauseum), it's a disgrace for the government to willfully disregard the needs of victims. The law allows for rapid online shaming of alleged perpetrators, but not rapid access to legal counsel for victims. Who benefits here? How is justice served? And what's the point of convening a panel only to ignore their advice?

These shortcomings of the law, though, can be corrected in the future. What can't be corrected, however, is the decision by the government to give itself the right to make College committee appointments, including the Executive that runs the show when the Council isn't meeting. Make no mistake, this makes the College of Physicians a de facto arm of the provincial government. The province tried it before, using the College to conduct audits of billings, but that was about money. This is a wholesale abrogation of medicine as a self-regulating profession. The chastened College is now little more than an administrative registrar, with its strings to be forever pulled by politicians. If anyone thinks a different party in charge will undo that, and willingly return power to an independent College, they are mistaken.

All of us - health professionals, patients, policymakers - would do well to reflect on how it is that we arrived at this moment, when the bounds of professionalism will be defined by political whim, rather than thoughtful consensus.

Was it that the College investigation-and-discipline process around sexual abuse was flawed by design? That it put too much emphasis on disciplining the perpetrator, opening the door to aggressive (and therefore lengthy) legal defense, and not enough emphasis on aid to the victims? Or was the disciplinary process not harsh enough, placing too much emphasis on a "fair" process to satisfy public sentiment?

It might be that no amount of regulation could ever prevent sexual abuse of patients. For most of the 2500 years doctors regulated themselves, women were little more than men's property at the best of times. Short of outright rape, sexual assault of any kind wouldn't have been considered a crime from the time of Hippocrates right down to the 20th century, and it's only in very recent years that victims have had legal protections as witnesses to crimes they themselves have suffered. Like the law, maybe an effective self-regulating College was too little, too late to make timely justice and compassion a reality.

Maybe it's impossible for careful deliberation around policy to keep up with a hyper-connected, hyper-litigious, and hyper-politicized world. The wisest of rules take time to get right, but political reality has made the timelines too tight, and we were bound to end up where we are.

I've long been a harsh, even disrespecting critic of the College of Physicians in Ontario. I've found its manner to be overly draconian, its processes too slow and bureaucratic, and its obsession with sex to border on comical. But I have to believe that the doctors, volunteers, and staffers doing the work only ever did what they believed was best for the people of Ontario, and the standing of a profession that's as old as democracy. That the College is now stripped of its independence, and subject to the needs of political expediency, should give us pause for thought and lament. The shelter from political winds is dismantled for good, and nobody can predict what lies ahead.


  1. Almost two decades the concept of professional self-regulation was supplanted by professionally-led regulation for all health professionals. This reflects the reality that non-physician public appointees constitute almost half of the CPSO governing Council and play important roles on all CPSO committee. Even Bill 87 has not obliterated the opportunity for physicians to be effective leaders in regulation of our profession. Effective leadership does require total physician control over all regulatory activities. In fact, working in partnership with citizens and patients strengthens professional regulation by ensuring that it is attentive to the interests of citizens and patients.

    1. Always appreciate your comments Dennis! I fully support partnerships with, and participation by, citizens in College governance. Doctors are all too often myopic in their worldview, and just as prone to self-interest as anyone. You are right that there will be opportunities for thoughtful and dedicated physician leaders.

      The issues with the law I was going after in the piece are twofold: first, the government's arrogation of appointments; and second, the disregard of the expert panel recommendations.

      With respect to appointments, there's been no declaration that the government will use something akin to its tribunal appointment process, nor a commitment to competencies-based appointments as suggested by the College of Nurses when the bill went to Committee. We're left, then, with the whims of the government of the day, or at best(?) the unknowable decision-making processes within the Ministry. When we factor in that the law allows the government to make appointments to the Executive Committee, it's hard to ignore the potential for the CPSO to serve the interests of the government, rather than the citizens of Ontario. Those aren't one and the same.

      The points about the expert panel should speak for themselves. The whole aim of the law was to bring justice and resources to bear for victims of sexual abuse. Whether or not the recommendations would have solved the problem is moot. The point is that the government disregarded them entirely, and there's little in the Protecting Patients Act that makes me optimistic the scourge of patient abuse will go away.

      We aren't talking about what happened in the wake of the Gomery inquiry, which the Harper government used as the basis for the insanely partisan Federal Accountability Act. That was a scandal about political cronyism, vote-buying, and so old as the hills and fully contained within the political world.

      Sexual abuse is also as old as the hills, but it's the most destructive crime there is. Victims of sexual trauma suffer decades of mental illness, fractured relationships, and rarely engage the justice system because the process and outcome are often re-traumatizing. We owed it to past and future victims to take the matter seriously. The government really didn't, and it will be a very long time before the issue comes to the forefront again. That's a travesty, a tragedy, and a missed opportunity to set things right.

    2. I well understand your concerns. In the UK the the conduct to hearings has been removed completely from the General medical Council(GMC)/ The only way for us sustain our vital role in regulating medical practice is to exercise strong leadership and be attentive / responsive to societal needs and expectations.