Ontario Proposes Regulations To Further Protect Patients From Sexual Abuse

The government has now proposed three additional changes following Bill 87.

Back on May 30, 2017, the Ontario government passed the Protecting Patients Act, 2017 (“Bill 87”), making a variety of changes to the regulation of health professions in the province, primarily in respect of protecting patients from sexual abuse. At that time, BLG released a bulletin explaining the changes and noting that several additional changes were expected in the future by way of regulation.

The government has now proposed three changes by way of regulation:

1. Definition of “Patient” — Under the Regulated Health Professions Act, 1991 (the “RHPA”), any sexual interactions with a patient are considered sexual abuse. As part of Bill 87, the government introduced a definition for “patient” wherein individuals continue to be considered patients of their health-care provider up until one year after they cease to be a patient. The draft regulation proposes to define what circumstances create a patient-provider relationship, including:
   1. charging the individual for a health-care service;
   2. contributing to a health record for the individual;
   3. recommending a health-care service that the individual consents to; or
   4. prescribing the individual a drug for which a prescription is needed.

The government has proposed a narrow exception where the care is provided to an individual in an emergency situation by a provider with whom he/she is in a sexual relationship, and reasonable steps are taken to transfer care, if possible. Of note, the definition of “patient” from Bill 87 has not yet come into force, but we expect it will alongside the proposed regulation.

2. Expansion of College Register — Bill 87 added to the kind of information that a College must include on its public register about a member. The proposed regulation will further expand that list to include:
   1. all criminal findings of guilt in Canada;
   2. all criminal charges in Canada (and corresponding bail conditions); and
   3. licence and registrations held in any other jurisdictions (including disciplinary findings by any professional regulatory authority).
3. Mandatory Revocation of Licence — Bill 87 expanded the list of actions constituting sexual abuse that would result in the mandatory revocation of a member’s certificate of registration. The proposed regulation expands these circumstances to include instances when the member is found guilty of one or more of 15 offences under the Criminal Code, including sexual exploitation, publication of an intimate image without consent, child pornography, and sexual assault.

The government has invited comments from the public and health-care community up until March 22, 2018. The draft regulations and link to provide your comments can be found on Ontario’s Regulatory Registry.

While the proposed regulations do not change a hospital’s reporting obligations under the RHPA, they provide further context for consideration by hospitals to ensure compliance. As a brief reminder, pursuant to section 85.2 of Schedule 2 of the RHPA, if a hospital has reasonable grounds to believe that a member has sexually abused a patient, it must report this to the registrar of the regulated health professional’s College. Bill 87 instituted a fine of up to $200,000 on a hospital for failure to report patient sexual abuse.