The provincial health minister says decades-old legislation that governs Ontario’s medical regulatory body will not be reviewed, despite criticism that the act protects physicians before patients.
The NDP’s provincial health critic, France Gélinas, said the act should be overhauled to include more mandatory sanctions and to compel the college to contact police if they know about sexual abuse cases.
Dr. Eric Hoskins, the province’s minister of health and long-term care, said the College of Physicians and Surgeons is mandated to use the Regulated Health Professions Act to best serve and protect public interest.
But a recent case has critics calling for a review of the zero-tolerance law, which was enacted in 1994 in response to a groundbreaking task force report three years earlier on the sexual abuse of patients by health professionals.
Mississauga family physician Dr. Sastri Maharajh was disciplined for professional misconduct by the college last summer after he admitted to sexually abusing up to 13 women by either putting his mouth on or resting his cheek on their breasts.
He was suspended for eight months before returning to work at a walk-in clinic in July, where he is now permitted to treat only male patients.
It’s currently up to the College’s discretion whether to contact police about a doctor disciplined for sexual abuse.
College spokesperson Kathryn Clarke has refused to say whether it had contacted police about Maharajh. Peel Regional Police told the Star they would launch an investigation if the College lodged a complaint, and Maharajh’s name was not in their records as of Wednesday.
Gélinas said this discretion protects health-care providers. The College should “absolutely” be mandated to contact the police in instances of sexual abuse, she said.
Touching a woman’s breast without consent is a sexual assault, said Toronto lawyer Peter Rosenthal.
“If (Maharajh) touched a breast with his hand or his mouth, anywhere in the world, in a doctor’s office or on the street, without the consent of the woman, then it’s a sexual assault in my view, independent of where it occurs.”
Sexual assault, he said, is a criminal offence.
“You would think if the police find out about it they should investigate it and consider laying a criminal charge,” Rosenthal said.
Forcing the involvement of victims of sexual abuse may result in their reluctance to come forward to either agency, Clarke said in an email to the Star.
Going through the court system can be an onerous experience for the victim, but seeking discipline from regulatory body is also a burden, said Kevin Reel, assistant professor and ethicist from the University of Toronto. Victims have to initiate the complaint, provide detailed information and appeal if they believe the regulatory body’s actions are insignificant.
“It shouldn’t be an overly simple processm either, because malicious or vexatious accusations can ruin careers and lives unnecessarily,” Reel said. “But where the accusations prove to be legitimate, the response ought to be appropriate and, common sense would suggest, in line with how the law courts would respond.”
Critics also say the act should make the stripping of medical licences mandatory in any case of sexual assault or abuse.
Health minister Hoskins said current legislation gives the College the discretion to revoke a physician’s licence in all cases of sexual abuse.
“When the College finds that one of their members has sexually abused a patient, they have the tools and the duty to discipline them. Ontarians depend on and rightfully expect the College to use those tools appropriately and put the safety of Ontarians first,” he said in a recent statement
The act allows the college’s discipline committee to penalize physicians who sexually abuse patients as they see fit, as long as the transgression doesn’t include sexual intercourse, various forms of contact between the genitals, anus, and mouth, and masturbation.
A review of the act is long overdue, Gelinas said.
“We have come to the realization that the zero-tolerance works in the sense that if it can be perceived as sexual abuse then it is reviewed by the college,” Gélinas said. “Where it falls flat is that we don’t have the same zero tolerance when it comes to sanctions.
“I think we have come to the point where there has been enough sexual abuse going on not being dealt with responsibly that I think it’s time to have another look at (the legislation). Not only do we want zero tolerance, we also want mandatory sanctions.”
The Regulated Health Professions Act, which exists to protect the public, is flawed, said Gélinas.
“The bill is written in a way that has lots of restrictions to protect the health care providers, when really (the act) has one function, to protect the public.”