‘You can’t expect a body to police itself’
Doctors’ regulator ignored key matters in ‘sexual boundaries’ review: critics
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Hey there, time traveller!
This article was published 22/08/2022 (758 days ago), so information in it may no longer be current.
In the midst of a brewing — but not yet public — alleged sexual abuse scandal involving a rural doctor, Manitoba’s physician watchdog undertook an in-depth review of its misconduct policies.
Critics say it was an opportunity for the College of Physicians and Surgeons of Manitoba to take steps to better protect patients, and while progress was made, important matters went ignored.
BEHIND CLOSED DOORS
A Free Press investigation into the secretive nature of physician oversight
The college launched a “sexual boundaries” review in June 2019, citing a need to “reconsider whether the public interest and patient safety are being served” with existing policies, noting that “societal values evolve.”
While it would still be more than a year before Ste. Anne doctor Arcel Bissonnette would be charged with 22 counts of sexual assault, the college was already aware of the allegations. A whistleblower filed a formal complaint with the self-regulatory body in October 2018.
It’s unclear if the Bissonnette case was considered in the review.
The whistleblower says she is “infuriated” by how the college ultimately handled her case and is shocked to learn the review was happening simultaneously. Critics say issues she faced, including communication breakdowns, retraumatization and lack of transparency, should have been addressed in the review.
The college has recently come under fire for how it handles sexual misconduct cases involving doctors following a Free Press investigation.
JOHN WOODS / FREE PRESS FILES The College of Physicians and Surgeons told the Free Press that updating standards to “more clearly” define sexual boundary violations and hiring a social worker to support complainants during the investigation process were among the changes it made.
Earlier this month, the newspaper reported that the college allowed Bissonnette to continue practising — with a condition placed on his licence requiring the presence of a chaperone during sensitive examinations of female patients — after learning he’d been accused of sexually assaulting patients.
The college then appears to have ceased investigating, leaving the matter to police, as is its policy but failed to inform the complainant.
Those issues — failure to suspend physicians who face serious allegations, deferring to police when a criminal investigation is also underway and not communicating decisions with complainants — were not addressed in the review.
Lorian Hardcastle, an associate professor of law with the University of Calgary, said the college’s policy to cease investigating when police are involved is “most troublesome.”
“(Patients) need everyone acting on these cases as soon as possible, because then if one of those entities has delays or drops the ball or something goes wrong, you still have those added layers of protection,” Hardcastle said.
Issues the review did consider include: hiring a support worker for complainants; trauma-informed training for investigation staff; doctors’ fear of seeing their names published for misconduct; the college’s fear of alienating doctors during investigations; and the pros and cons of gender-based chaperones. Aside from training and more supports, the working group mostly recommended the college maintain the status quo for its policies.
Hardcastle said hiring a support person is an “excellent step,” but other issues, such as gender-based conditions on physician licences, along with the policy of deferring to police, warrant further study.
The college told the Free Press that updating standards to “more clearly” define sexual boundary violations and hiring a social worker to support complainants during the investigation process were among the changes it made.
Hardcastle said hiring a support person is an “excellent step,” but other issues, such as gender-based conditions on physician licences, along with the policy of deferring to police, warrant further study.
Hardcastle and others who work in the fields of health, law and advocacy for sexual-violence survivors say those issues would be best addressed by an independent review — something for which Manitoba NDP health critic Uzoma Asagwara has also voiced support.
The province has not commented on the possibility of an independent review.
Simona Jellinek, a Toronto lawyer with extensive experience representing survivors of sexual assault, said the college’s policy of sharing communications between victims and alleged perpetrators is “wholly inappropriate.”
Jellinek said deferring cases while police investigations are ongoing is an “abdication” of the college’s duty to protect patients.
When a complaint is received, the college shares the detailed allegations with the physician, forwards the physician’s response to the complainant and then asks the complainant to respond. The complainant in the Bissonnette case said reading her alleged abuser’s response was “triggering.”
The college has defended the practice, saying it keeps complainants informed of the developments of the investigation. The social worker, hired in August 2020, is also available to provide support, the college said.
Jellinek said deferring cases while police investigations are ongoing is an “abdication” of the college’s duty to protect patients. She said an external agency, as opposed to doctors overseeing doctors with a self-regulating body, would be better suited to handling complaints against physicians.
“You can’t expect a body to police itself,” she said.
“The fact that in their judgment the public wasn’t entitled to know (who was involved) is yet another indication that they don’t get it when it comes to issues of protecting public health and safety and promoting confidence in the integrity of the college itself.” – Arthur Schafer
As for the structure of the boundaries review, the college has said the working group included external parties, such as an ethics expert and representatives from hospital emergency departments and the Women’s Health Clinic, and that the review included a “very public” consultation. However, it won’t say how many members of the public weighed in.
The college provided the Free Press with a copy of the working group’s report with names of those involved blacked out, despite the existence of an unredacted report on its website. The college did not say why it attempted to conceal the identities of the working group.
To one ethics critic, that’s a red flag.
“The fact that in their judgment the public wasn’t entitled to know (who was involved) is yet another indication that they don’t get it when it comes to issues of protecting public health and safety and promoting confidence in the integrity of the college itself,” said Arthur Schafer, founding director of the Centre for Professional and Applied Ethics at the University of Manitoba.
The redaction — among other issues of secrecy — “suggests that the college can’t be trusted to clean up its own house,” he said, adding he also supports an independent review.
katrina.clarke@freepress.mb.ca
Katrina Clarke
Reporter
Katrina Clarke is an investigative reporter with the Winnipeg Free Press.
Our newsroom depends on a growing audience of readers to power our journalism. If you are not a paid reader, please consider becoming a subscriber.
Our newsroom depends on its audience of readers to power our journalism. Thank you for your support.
Issues raised
• Open vs. closed misconduct hearings
Hearings for physicians charged with sexual misconduct are open to the public unless otherwise ordered by the college. The review looked at other provinces where hearings are closed. “Some members” of the working group supported closing hearings in Manitoba but also recognized that the member physician and complainant may want outside supporters present. The review also noted that “there is rarely media present at a hearing.” Physicians are not named, however, unless the doctor is convicted. The group recommended the status quo — open hearings with no publication of names — be “maintained.”
• College “always worried” about disciplined doctors
The review report notes that physicians have a “huge fear” of their names being published — a step the college takes when it finds a physician guilty of misconduct. Publication of names can act as an “important deterrent,” the report states, though it doesn’t get into details of deterrence. The report adds: “the College always warns the physician’s counsel when the publication is going up as the College is always worried about the ramifications for physicians and the incredible stress this puts on them.”
• Supports for complainants, training for staff
The college had recently hired a social worker whose job is to support complainants as the complaints/investigation process unfolds. The working group supported the move. The report also states the college was “actively pursuing” training for staff on trauma-informed approaches to investigations and prosecutions, a measure supported by the working group.
• Mandatory minimums vs. “full discretion sentencing”
The college looked at sentencing policies in other provinces, such as Alberta and Ontario, where colleges automatically revoke licences of physicians found guilty of sexually abusing patients.
The working group, however, rejected mandatory minimums in favour of “full discretion sentencing,” or sentencing on a case-by-case basis. The “nuanced approach to a very serious and complicated set of concerns” allows the college to operate more efficiently. When physicians know there is flexibility in sentencing, they are more willing to work with the watchdog, the report suggests. “There was a real sense many cases would never be addressed because of challenges of prosecuting difficult cases and there being no incentive for members to co-operate as they have everything to lose if found guilty.” The report also stated that “despite impressions based on media reporting” the group determined that the college’s previous sentencing decisions “were reasonable and served the public protection, deterrent and other sentencing goals.”
• Gendered chaperones “very problematic” but policy still in place
The review looked at the overall value of having chaperones present during appointments, and raised concerns about cases where physicians are required to have one present as a condition of a requirement on their licence.
Notably, the working group states: “It is recognized that for members who have committed sexual boundary violations, having a chaperone may not be adequate to protect the patient.” The report also states: “Linking chaperone requirements to a specific gender of patient is very problematic in relation to patients who identify outside of the gender binary on which traditional requirements have been based.”
However, this practice is still allowed in Manitoba. In Ontario, gender-based conditions are banned.
Katrina Clarke
Reporter
Katrina Clarke is an investigative reporter with the Winnipeg Free Press.
Our newsroom depends on a growing audience of readers to power our journalism. If you are not a paid reader, please consider becoming a subscriber.
Our newsroom depends on its audience of readers to power our journalism. Thank you for your support.
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