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HPRAC Recommends Changes to the Sexual Abuse Provisions in the RHPA

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Health Law Bulletin

The Ontario Health Professions Regulatory Advisory Council (“HPRAC”), delivered its report entitled, The Spousal Patient Advice to the Minister of Health and Long-Term Care for Alternatives to the Mandatory Revocation Provisions and the Delivery of Treatment to Spouses under the Regulated Health Professions Act, 1991 (the “Spousal Patient Report”) to the Minister of Health and Long-Term Care (the “Minister”) on June 1st, 2012; later that month the Minister released the Spousal Patient Report to the public. The Spousal Patient Report was created in response to a referral by the Minister  on June 24th, 2011 requesting HPRAC’s advice on whether or not the Regulated Health Professions Act, 1991 (“RHPA”) should contain alternatives to the mandatory revocation provisions for regulated health professionals who sexually abuse patients .  Under the current provisions, if a regulated health professional provides treatment to his or her spouse, he or she may be in violation of the sexual abuse provisions in the RHPA and therefore subject to a penalty of mandatory revocation of his or her certificate of registration.

HPRAC recommended:

…the treatment of spouses should be expressly exempted in the sexual abuse provisions. Specifically,

The language of the RHPA should be amended to exempt spouses from the definition of sexual abuse; and

Colleges, who wish to continue to prohibit their members from treating their spouse, should make profession-specific changes to professional misconduct regulations and/or standards of practice to enforce such practice.

The Referral

The Minister was clear about what advice she was seeking from HPRAC. In her letter to HPRAC she stated:

…I am asking for HPRAC's advice only within the context of treatment provided by a regulated health professional to his or her spouse, and only in relation to the mandatory revocation provisions. A spouse in this context is a person with whom the regulated health professional is married, or with whom the regulated health professional is living in a conjugal relationship outside marriage.

I must emphasize to you that the government's position on zero tolerance for sexual abuse has not changed and I am not requesting advice related to these provisions generally. Consequently, I would ask that you limit your advice and comments only to the issue set out above.[1]

Nonetheless, HPRAC concluded that this focus would not adequately address the issue in question, stating:

A critical consideration in the analysis was whether a pre-existing spousal/conjugal relationship had an impact on the health care provider-patient relationship. On this matter, HPRAC concluded that spousal, health care provider-patient relationships are different from non-spousal, health care provider-patient relationships. Further, HPRAC recognized that merely focusing on alternatives to the mandatory revocation provisions would be insufficient to address the issue.[2]

Background to the Sexual Abuse Provisions in the RHPA

In December 1993, the Ontario Legislature introduced Bill 100 in order to amend the RHPA. The Bill included provisions that, among other things, (i) prohibit sexual contact between health professionals and their patients and (ii) require mandatory revocation of a health professional’s certificate of registration in the event of certain types of sexual contact. With the passage of Bill 100, the Legislature adopted a zero tolerance position with respect to the sexual abuse of patients by their regulated health professionals. The legislation did not make an exception for circumstances where the patient is also the spouse of the health professional.

The Spousal Patient Report

In its Spousal Patient Report, HPRAC emphasized that it continues firmly to support the government’s position of zero tolerance with respect to sexual abuse of patients by regulated health professionals.  However, the Spousal Patient Report proposes to amend the definition of sexual abuse in the RHPA to exclude consensual sexual relations within a spousal relationship. HPRAC further recommended that it should be within the discretion of the regulatory Colleges to continue to prohibit their members from treating a spouse through changes to the professional misconduct regulations for the specific profession and/or the standards of practice regarding same.

HPRAC grounded its decision to make its recommendations in arguments that the inclusion of consensual spousal relationships in the definition of sexual abuse may: (i) deny timely access to health care providers; (ii) limit access to health care in remote areas; (iii) infringe on an individual’s right to choose a health provider; (iv) result in the inability to have health services provided by a trusted provider; (v) detract from true victims of sexual abuse and (vi) weaken the zero tolerance provisions and create confusion on how sexual abuse complaints should be handled.

Next Steps

The Ministry of Health and Long-Term Care has requested input from providers and stakeholders on the Spousal Patient report. The deadline for submitting input is August 17, 2012. It remains to be seen how the Ontario government will react to the Spousal Patient Report and whether the recommendations will result in changes to the RHPA.

For further information please contact the authors.

[1]     Referral Letter from the Minister to HPRAC, June 24, 2011

[2]     The Spousal Patient Report at page 5


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