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Bill 87 could have negative impact on patient care, health lawyer says

Tracey Tremayne-Lloyd, founder and principal of TTL Health Law, says the changes introduced by Bill 87 – the Protecting Patients Act – which recently passed in Ontario, is “completely unneccesary.”

Bill 87 amends the Regulated Health Professions Act of 1991. One of these amendments involve expanding the list of sexual abuse offences that will result in mandatory revocation of a health professional’s licence.

“Under the current legislative regime, the sentence is commensurate with the crime, with the facts of the particular set of circumstances,” Tremayne-Lloyd told AdvocateDaily.com. “It doesn’t mean an automatic revocation as it does under the proposed new law. This legislative change would remove discretion from the disciplinary panel, which is the trier of fact.”

Through years of dealing with health disciplinary committees, Tremayne-Lloyd said these panels take complaints seriously, weigh the evidence carefully and carry out sanctions against the offending health professional appropriately.

“Throughout my 30 years of experience I have seen that the disciplinary panels consistently listen to the evidence, weigh the evidence and they get direction from an independent legal advisor – just like when a judge gives a charge to the jury before they deliberate – and they do not give light sentences,” she said.

She added that while the sexual abuse of patients is a serious concern, Bill 87 just misses the mark.

Already, the College of Massage Therapists of Ontario (CMTO) is taking pro-active steps to prepare its registrants for the regulatory changes that will be coming with the new legislation. It has drafted a new Standards for Maintaining Professional Boundaries and Preventing Sexual Abuse, which replaces existing related standards. This draft was submitted to RMTs in Ontario for feedback in June.

Other Bill 87 amendments to the Regulated Health Professions Act include: prohibiting a regulated health professional from continuing to practice on patients of a specific gender after an allegation or finding of sexual abuse; requiring the disclosure of a regulated health professional’s personal information, including their health records; and increasing access to patient therapy and counselling as soon as a complaint of sexual abuse by a regulated health professional is filed.

Tremayne-Lloyd said removing the panel’s discretion for how it hands out sanctions may impact the delivery of health care because many health professionals will “be afraid to do their job.”

“What impact will that reluctancy to give a full examination have on the patient?” she asks. “Are those physicians now going to say, ‘I’m going to treat what the patient was referred for and nothing else’ for fear of being accused of inappropriately touching that patient?”

The new standard issued by the CMTO relating to Bill 87 communicates “expectations and requirements for: obtaining client consent for treatment of sensitive areas, appropriate treatment of friends and family members (excluding romantic/sexual partners/spouses – whom RMTs cannot treat); maintaining professional boundaries; as well as explaining post-termination relationships and mandatory reporting requirements of RMTs.”

In a letter sent to the CMTO, the chair of the board of directors of the Registered Massage Therapists’ Association of Ontario (RMTAO) said that while the association recognizes the significance of the new legislation and the CMTO’s move to update its existing standards to ensure compliance, there are “specific areas of concern” in the proposed standard.

The concerns are outlined in the RMTAO letter.

“We hope that the implementation of the final version of these standards will allow massage therapists and clients to build therapeutic relationships of trust, open communication and understanding,” Krystin Bokalo, RMTAO board chair, wrote in the letter to the CMTO.