CONSULTATION 015

Sexual Abuse and Sexual Misconduct

Consultation is now closed

Your feedback needed by Dec. 16

In November 2018, the Alberta government passed new legislation to protect patients from sexual abuse and sexual misconduct by health professionals. Under Bill 21: An Act to Protect Patients, regulators are required to develop standards of practice that will take effect on April 1, 2019.

CPSA is committed to protecting patient safety and supports the government’s decision to pass this legislation. While the vast majority of physicians provide safe, high quality health care, all physicians are responsible to understand the new rules.

An Act to Protect Patients mandates:

  • permanent cancellation of a practice permit for any health professional whose conduct is proven to be sexual abuse of a patient;
  • at minimum, suspension of a practice permit for any health professional whose conduct is proven to be sexual misconduct toward a patient; and
  • a five-year prohibition on applying for reinstatement for any health professional whose practice permit is cancelled for sexual misconduct toward a patient.

Click for detailed conduct classifications and consequences

Under the legislation, our standard of practice must set out:

  1. Who is considered a patient for the purposes of our regulated members;
  2. When a sexual relationship may occur between a regulated member and a former patient; and
  3. When a person who is a spouse of, or in an interdependent relationship with a regulated member may also be a patient.

The College has worked closely with a legal firm to draft a standard of practice that will meet the letter of the law. Unlike other CPSA standards of practice, this one will require approval by the Minister of Alberta Health.



“…it’s important for the profession to understand why this legislation was imposed, what the consequences are and to have their input into what the definition of a patient should be….”Dr. Karen Mazurek, Deputy Registrar

Consultation is only open until Dec. 16, 2018.

While the content of the standard is mandated, your feedback will help ensure it provides our members with clear direction and guidance regarding the legal and professional boundaries they must maintain with patients and the serious consequences of non-compliance.

We need your comments by Dec. 16 to meet the year-end deadline to submit our draft to government.

Note: The existing Boundary Violations standard will also require amendment as certain clauses have been incorporated into the draft.

The profession, stakeholders, other organizations and public members were invited to provide feedback from December 10-16, 2018. Council will consider non-nominal feedback when approving final amendments before the standard is submitted to the Minister for approval.

All feedback is subject to the College’s Privacy Statement. The College reviews all comments before publication to ensure there is no offensive language, personal attacks or unsubstantiated allegations.

If you have any questions or require further assistance, please contact Chantelle.Dick@cpsa.ab.ca

 

Comments

I feel there should be a restriction on Team or group physicians in sport or the arts in entering a sexual relationship even if the participant is not a directly involved patient receiving treatment or diagnosis. There is a silent but present power inequity in these types of settings that can be abused .

Sydney Mark Heard
Banff Sport Medicine
11/12/2018
Alberta Physician

Thank you for the clarity that this draft provides. I especially appreciate the lifetime ban on any patient with whom one has had a psychotherapeutic relationship, although this may require further definition and clarification: an appointment for psychotherapy alone would likely need to have been provided, as supportive psychotherapy is usually provided to a greater or lesser degree in most clinical interactions for all medical conditions.

Sandi Frank
Sandi C Frank PC
11/12/2018
Alberta Physician

Under prohibitions, 1: How is the decision of the tribunal conclusive if there are divided opinions on the tribunal? Should this not say "majority finding of the tribunal?"

Page 3 section a) I think this has to include the word "knowingly," since a physician may not be aware of a relationship between a person and their patient.

Page 3 c: I think this has to include the word "premeditated" before "purpose," since a physician might inadvertently run into a patient at a social event, and could later be construed to have initiated a relationship with the patient at that time, even if the physician subsequently ended the physician patient relationship and waited the compulsory year ( or longer)! before pursuing the relationship. Without the word "premeditated," a physician would be wise to exit any social event where they encountered any patient, which I'm sure is a frequent occurrence for a rural physician.

Page 3 d: I think it is too restrictive to say a physician must not terminate a patient relationship in order to pursue a relationship. The document already precludes a relationship for a year after they cease to be a patient, and longer if there is a potential for an unequal power balance. I think a physician should be allowed to terminate a physician-patient relationship if they are able to find a suitable alternative physician for the patient.

Tom Elwood
11/12/2018
Alberta Physician

Whereas I support the proposal; I suggest a suspension of Permit to Practice after a determination of sexual misconduct be reduced to 3 years for re-instatement upon demonstration of appropriate treatment and rehabilitation by the regulated member. The treatment and rehabilitation certification by an independent Physician(s) is the responsibility of the suspended regulated member. Thank you. Dr. Ronald Hons

Ronald B Hons
Clinical Nephrologist
11/12/2018
Alberta Physician

It is very unfortunate that the Health Minister had to bring this forward. The CPSA missed the boat as the CPSA should have done this 20 years ago. It makes us looks weak and inadequate when we can’t properlty set a proper regulatory framework to deal with sexual abuse by physicians. If we are “self regulated” then we should have done this 20 years ago. I’m actually embarrassed that the Health Minister had to do what the CPSA should have done long ago. Sincerely, Dr Scott Paterson.

Dr Scott Paterson
11/12/2018
Alberta Physician

First, the positive. I am glad that the CPSA is differentiating between "having sex with one's patient" vs. "providing episodic medical care to one whom you have sex with" (e.g. spouses and significant others). I have seen regulations for other jurisdictions that have not made this critical distinction.

Next, the criticisms.
1. I think this is a solution for a problem that does not really exist. Sure, sexual abuse of patients is a heinous situation that should be avoided and/or severely sanctioned. But this problem is exceedingly rare, like one case per year in the province of Alberta. Casting this much emphasis on the situation seems like a political maneuver and can only serve to demonize physicians (who are still recovering from Trudeau and Morneau's accusations that we do not pay our fair share of taxes).
2. I am leery about the definition of "touching of a sexual nature." Who gets to define what this is? It is very possible that a patient could feel that touching IS of a sexual nature, when it is only a routine exam. How are such discrepancies adjudicated?
3. I find the definition of a "patient" to be vague in the sense that the guidelines says "one or more of the following..." One item on the list includes "providing medical advice or treatment." Most doctors (scratch that, most HUMANS), do this on a regular basis. As crass as it may seem, I would actually say the acid test of what makes the person your patient is BILLING. I would never think of billing for advice I offer to an acquaintance or friend or relative ... because they are NOT my patients.
4. In the light of #MeToo, it can be particularly difficult to be a male physician. I would fully support having video cameras in all exam rooms. The feeds could go to some kind of vault or archive. The Powers That Be could perform semi-random or targeted audits as they see fit. I am totally comfortable with explaining my words and actions via such format. It is the potentially vexatious "he said, she said" reports in a "guilty until proven innocent" climate that concern me the most.

Thanks for your consideration,

- Dave Lounsbury

David Lounsbury
Dr. David S Lounsbury Medical PC
11/12/2018
Alberta Physician

While supporting the principles of the legislation, this is a serious attempt by government to infringe on self regulation. There is no black and white here, but many shades of gray. In the past the tribunal was able to consider an individual case and determine actions. Now these actions are prescribed by government.

Because of the “political incorrectness “ of opposing this bill, we are allowing government to infringe on self regulation. Another, nonsexual topic would have triggered massive protest.

Why does this law not apply to lawyers and their clients? How about employees or within corporate structures supervisors and managers ? There are “power imbalances” there as well.

A case by case consideration with flexibility of penalties according to the circumstances has served the profession well for many years.

I agree with the maximal penalties in regards to licensing, but these should be considered and not imposed by the tribunal because of a government prescription.

Health professionals should not be singled out when it comes to “power imbalance”. I find this discriminatory.

Ernst Schuster
Independent
11/12/2018
Alberta Physician

NONE AS I WILL RETIRE IN 2019

ALFRED LUTTERODT
11/12/2018
Alberta Physician

I have reviewed the draft and also heard Dr Mazurek.

I feel it is vitally important that the noble standard of our profession is upheld. No form of Sexual relations should exist between a Doctor who is in a position of trust and their patient.

The scope of this document, whilst comprehensive, does not take a clear position on the extended family of a patient (Daughters, Sons or cousins) where contact with a regulated member may occur during the course of a joint consultation. It would be interesting to define this area as well as these individuals become part of the confidential information sharing process.

In my opinion, the same rules should apply to family members of a patient to ensure the highest standard of practice.

Saqib Nisar Mirza
Family Physician
11/12/2018
Alberta Physician

I am Okay with the standard although it is very wordy compared to our usual standards.

Cheri Nijssen-Jordan
practitioner
11/12/2018
Alberta Physician

100 percent agree

Amer Habib
Coral Springs med clinic
11/12/2018
Alberta Physician

I think suspension for few years should be better

Muadh Abounaja
11/12/2018
Alberta Physician

Is this imposed change to the Health Professions Act going to become standard across the Canada? If Alberta is the only province to move to permanent cancellation of a practice permit (i.e., no chance of ever being given another practice permit) for any health professional whose conduct is proven to be sexual abuse of a patient and the other provinces do not follow suite then that to me is a real issue. I agree with the logic behind the Health Minister's thinking but If it is truly a question of putting patient's safety first then it should be a nationally accepted standard.

Bill Sevcik
11/12/2018
Alberta Physician

My opinion is the proposed punishment for permanent cancel /suspension of license is to much . It should be for a 2 years and then depending on physician behaviour should be assessed ongoing basis

Muhammad Aslam
11/12/2018
Alberta Physician

Nil

Ron Lim
11/12/2018
Alberta Physician

Bill 21 as it is intended to protect the public will also serve to protect the medical profession of Alberta whose reputation has been harmed by those few in the past who acted in a professional irresponsible manner. I fully support Bill 21 draft as it stands.

Michael R. Murphy
11/12/2018
Alberta Physician

What happens if a male patient is sexually assaulted, is there a provision for this in the new regulation

Dr Olusegun Ajayi
Family physician
11/12/2018
Alberta Physician

I believe these legislation are there for a reason to protect the public interest, especially the vulnerable patients. I am in support of the bill.

Marwan Al-Doori
General Practitioner
11/12/2018
Alberta Physician

Is the tribunal a formal court with witnesses? I agree with the discipline mentioned. Proving such misconduct is very difficult. Accusations can be very easy to make.

Robert Graham
Dr.
11/12/2018
Alberta Physician

This bill on sexual misconduct by health care professionals is long overdue. There have been far too many cases of sexual abuse by physicians on their patients. I could never understand why the CPSA was so weak to deliver punishment in these cases. From reading the Messenger, it seems these physicians received a slap on the wrist for having sexual intercourse with their patients. Why was the CPSA so lacking with their standards in this regard? Why did the government have to step in and do what the CPSA failed to do? As a self regulated profession, the CPSA should have been more proactive regarding sexual abuse of patients.

Dr. Cathy Cave
11/12/2018
Alberta Physician

A few thoughts about the draft standard. It's obviously important to safeguard patients from sexual abuse or misconduct at the hands of docs, and having "mandatory minimum sentencing" might possibly help protect patients (or at least give the public the perception of doing so). And obviously the College needs to comply with the new legislation.

On initial reading, I wondered why a "regulated member" who sexually abused a patient (or anyone else) shouldn't rather be dealt with via the justice system? Based on Dr. Mazurek's video clip, it seems that sexual assault is yet another category, where the justice system would in fact be involved. However, it's still a little unclear to me whether the categories/labels make sense? Is this correct: any "conduct, behaviour or remarks that are NOT appropriate to the service provided (cross-referencing the Standards on Informed Consent)", involving a patient (exhaustive definition provided), is considered Sexual Abuse (if it involves the specific body parts/masturbation listed) or Sexual Misconduct (if it doesn't)?

There are 2 big issues here. One is how to determine what "conduct, behaviour or remarks" are/aren't appropriate to whatever service is being provided. Presumably, the patient determines this, but what happens in the case of honest misunderstanding between the patient and the doctor about what is appropriate in the circumstance? Would the doctor's note about discussion/consent outweighs the patient's perception? It probably won't happen often, but I can foresee potential complaints that might be very hard to adjudicate, based on this definition. One might even get to the point where docs simply ask all patients undergoing genital/anal/breast/buttock exams to sign a "consent form" (i.e. waiver), and it's a bit hard to see how that sort of mess improves patient protection? Obviously, it would be nice if common sense prevailed, but when patients and docs are at opposite ends of the "service being provided", there are bound to be different perspectives.

The second issue is that a CPSA "Hearing Tribunal" decides these cases, and the mandatory minimum sentences are very stringent (as they should be - provided the tribunal judges correctly). If a doc feels they were unfairly targeted/accused (realizing cases are likely under-reported, but unfortunately unfair accusations can still happen too), can they appeal the College's decision to the courts? Given that the courts might have a different burden of proof, what happens should the courts judge the doc did NOT commit sexual abuse/misconduct? How would the College deal with these mandatory consequences in that case? Not all docs have had great experiences with the College's handling of some complaints, and this Standard ups the ante very significantly re. the potential consequences of this type of complaint. The CPSA should be prepared for higher degrees of doc stress with these complaints, and be prepared to offer more robust supports, because even if it's determined at the end of the day, or year(s), that the doc acted appropriately, they will have been put through the ringer pretty badly. Joys of self-regulation.

Although obviously the Standard is needed because of the new legislation, it would be nice to see if there are any other ways in which the College is proactively trying to reduce the risk of docs acting wrongly in a sexual way with patients (or others), besides harsher sentences? I was under the impression that harsher/mandatory-minimum sentencing wasn't overly effective in other contexts, but perhaps it will be here?

Lastly, few minor comments.
- Suggest that the definition of "Patient" (first paragraph under "Definitions") be clarified to something like, " 'patient' [blah blah] means a patient as set out in Section 4, 'Who is considered to be a patient?', below;". Otherwise, the definition as written doesn't really mean anything.
- Does the definition of "regulated member" include residents/fellows/provisionally-licensed docs, etc?
- The second last paragraph under "Prohibitions" might be problematic. The Standard addresses sexual abuse and misconduct of patients by regulated members. Prohibiting "close personal relationships" with parents or children of patients, their spouses, etc. might not be justified under this Standard, conflates close personal relationship with sexual relationship, and leaves "close personal relationship" undefined. Items (c) and (d) might make sense, but I'm wondering if (a) does? It's hard enough for rural physicians to access a personal family doctor, let alone prohibit friendships among our spouses? Perhaps defining "close personal relationship" as "a relationship, beyond friendship, that a reasonable patient would deem inappropriate, given the regulated member-patient relationship"?
- Suggest paragraph 2 of the "Who is considered to be a 'patient'?" section be amended something like, "An individual becomes a patient when a regulated member-patient relationship is formed. This type of relationship is formed when there is a reasonable expectation that care will extend beyond a single encounter (episodic care is addressed under "Episodic Care", below) and the regulated member has engaged in one or more of the following activities...".
- Minor detail, but item (8) under paragraph 3 of the "Sexual Conduct after the End of the Regulated Member-Patient Relationship" would read better as "those suffering from addictions,[comma] and the homeless."
- It might be wise to define psychotherapeutic treatment. Does this apply to family doctors who provide psychotherapeutic treatment (in the general sense) every day, to many different types of patients? Or only to psychiatrists providing specific psychotherapies? Given the difference in how such relationships will be viewed by the CPSA, it warrants a better explanation to members.
- Lastly, the episodic care thing bugs me a bit. I realize the purpose of the Standard is to address sexual abuse/misconduct within the doctor-patient relationship, but surely an ER or walk-in clinic doctor, engaging in these behaviours with a patient whom they've only seen for episodic care (by definition, given their practice type), but happen to have seen 5 times in 2 months, should be treated in a similar way to other docs, for example a family doc who's seen a patient twice in 5 years? Or any of the various surgical or medical specialties that see patients primarily for episodic care? I would suggest that, given the definitions of Sexual Abuse and Sexual Misconduct provided, any doctor engaging in these behaviours within one year of treating any patient should have to prove why their conduct was appropriate, rather than the other way around. It's not an excessive time-period to wait, and the danger of treating members very, very differently solely based on whether "there is a reasonable expectation that care will extend beyond a single encounter" seems odd. Also not sure whether the distinction is that meaningful, or defensible, to the public.

Hope that's helpful!

Noel Corser
11/12/2018
Alberta Physician

Prosecution of the doctor only if the transgression can be confirmed without a doubt. It should be based on ( her story, his story) I also find the proposed punishment tooharsh

Ernst Snyman
11/12/2018
Alberta Physician

I am in total agreement with the act.as drafted

Mohamed Swenia
General Surgeon
11/12/2018
Alberta Physician

I humbly submit that we should be extremely careful with this; we have had many single new physicians who have been recruited to remote communities, where socializing becomes a very real part of both integration and survival, particularly for our IMG’s. While we are all in agreement about professional boundaries, your most thoughtful and well phrased reasoning within the walls of a city office may not be applicable to our colleagues in rural areas where human contact might be limited to the full compliment of your patient base only, as compared to almost limitless possibilities for socializing in a urban setting..... I sincerely hope that in our efforts to improve the image of our profession we do not loose sight of the human elements that make this world go round. I wish you wisdom, insight, compassion and the best of solid reasoning and judgement on this one. Merry Christmas and a VERY good New Year.

Leon Burger
Family Health Centre
11/12/2018
Alberta Physician

In failing to object to Bill 21, I feel that the College has done a disservice to all physicians who might themselves be patients suffering from treatable conditions that have impaired their judgement in interactions with patient's egs. drug , alcohol and sexual addictions. Why are doctors with such illnesses to be punished instead of being entitled to compassionate care? In some cases permanent cancellation, minimum suspension and 5-yr. prohibition may be unwarranted and unnecessary. Under the direction of the College, the doctor in question may voluntarily choose not to practice and seek treatment under the direction of the College. Return to practice with safeguards in place--some practices may not even involve direct, individual contact with patients (eg. surgical assistants) but would still allow earning livelihood with a medical degree obtained through long, diligent work and great expense.
Boundary Violation Review: Object to #3. b. Too all encompassing. eg. A grandmother in another city may be personally acquainted with a physician, through attending educational meetings, and years later may request a referral to that physician of her grandson.
#3. c. In my opinion, requesting details of a patient's sexual and personal history is always related to the patient's care and is a mandatory part of a complete and thorough history!

Iris Kumpula
I.M.Kumpula Prof Corp
11/12/2018
Alberta Physician

I don't have a problem with the sexual abuse part ,but sexual misconduct in this day and age can mean a lot of things.Say I see a transgender patient ,not known to me and don't know what his pronoun is,If I name it wrong is it sexual misconduct?That sounds like the Inquisition in the Middle Ages when people were accused of doing something wrong while they didn't even know what the crime was.

matt maree
family physician
11/12/2018
Alberta Physician

would like the wording to include sexual assault...as it is the criminal code wording... include offences against children....as laid out in the code in definitions.

Jacquie Aitken
Execetive Director, Pace community support, sexual assault and trauma centre.
11/12/2018
Stakeholder organization

I think the Bill 21 is fair. It will definitely enhance protection of patient safety.

Mohamed Tayem
Otolaryngologist at Alberta ENT Consultants
11/12/2018
Alberta Physician

Zero tolerance, the punishment should be severe. There is a physician with pending sanction at the CPSA website after 5 to 6 sexual incidents. Why is he still practicing?

Dr. Kunle Oyebode
Physician
11/12/2018
Alberta Physician

I agree with the proposed draft.

Amaresh Swaro
11/12/2018
Alberta Physician

Agree

Dr. Sajad Gulamhusein
11/12/2018
Alberta Physician

I thank Alberta Health and the College of Physicians and Surgeons of Alberta for confronting physician behaviours that destroy self esteem, relationships, and people. For far too long, we in Canadian society, have ineffectively dealt with health professional behaviours that are objectionable and reprehensible.
Our College of Physicians and Surgeons of Alberta's mandate is to "serve the public and guide the profession". By engaging Alberta Health and the Government of Alberta, the CPSA is meeting this mandate. I wholeheartedly support this legislation and accept it as a minimum standard of practice.

David G. Moores
Quality Health Service Lead-Dept. of Family Medicine-University of Alberta-Family Physician-MacEwan University Health Centre
11/12/2018
Alberta Physician

I strongly support this draft

Andrew Kohler
11/12/2018
Alberta Physician

In this day and age with the 'ME TOO" movement, we need to be very sensitive and careful with accusations which need to be thoroughly investigated before decisions are made.
I agree we need to protect the patients and at the same time we need to also protect our physicians. An example would be if a female or a male patient demands say opioids and the doctor refuse, and the patient files a complaint accusing the doctor of misconduct, sexual or otherwise etc. What happens next.

Having the doctor guilty until proven innocent puts a toll on him or her.

Patients do get upset when they don't get their demands met.

The internet and social media have published negative comments about physician that are not backed and substantiated.

I believe the college has to take in consideration all aspects before judgements are passed.

thank you

AMAR SINGH
11/12/2018
Alberta Physician

it is a good draft.

Dr. KANTA DAVE
11/12/2018
Alberta Physician

I agree and support this legislation, yours truly, william l louie

william l louie
11/12/2018
Alberta Physician

Excellent draft on Sexual Abuse and Sexual Misconduct. The area of Sexual Misconduct is a very hard one to place definitive criteria around because it involves perceptions from both parties involved.... and unfortunately, perceptions may be misleading.

I do have some concern over the use of the word "personal history" on page 3 item "b.". Some times general personal history is taken which at the moment is not directly related to the patient's care but may come in handy later. The most obvious example in my palliative practice is asking about their spiritual life. During the initial visit it's relevance may be questioned but it has helped many times when future issues come into play and, as a professional, you can draw upon that past conversation. Now, I know you are not referring to such a situation, but if the words "personal history" could be clarified as being in the context of sexual relationship interest, it would be clearer.

Side bar.... I find it amusing that the power imbalance between physician and patient is of importance when dealing with sexual relationship but not when determining eligibility in MAiD.

David Falk
11/12/2018
Alberta Physician

Seems reasonable.

Dr Joe M Stander
12/12/2018
Alberta Physician

Good.

Mursi
12/12/2018
Alberta Physician

I agree with the main provisions of the draft.

It is often difficult for physicians working in rural and remote areas to avoid giving un antipicpated or unscheduled care to family members even for minor issues. Patients do not always regard an issue as minor as evidenced by those presenting in ERs around the province.

Often the physician is the only one in the community when access to care is required and must either treat the family member or abandon the community to travel and wait for care with the family member elsewhere. It is not unreasonable for the physician to administer whatever care is necessary under the circumstances so that their family member may get equitable access to care regardless of urgency.

By the same token patients and anyone they authorise should be able to access their records on the EMR surrounding whatever care is needed.

Obviously physicians who administer such care would not bill for it, but that is not so much a College issue as an issue for the payer.

Care of family members by physicans should probanly not be mentioned in the same document as issues surrounding sexual abuse.

Thanks

Neil Heard.

Neil Heard
12/12/2018
Alberta Physician

No concerns with this draft.

Pamela Chu
12/12/2018
Alberta Physician

The draft standard of practice is clear and appropriate.

Martina Barton
13/12/2018
Alberta Physician

I absolutely agree and am so grateful that a very very very clear and strong message is being sent.
There should be no ifs ands or buts.
Any form of sexual activity with a patient , be it consensual or not, is wrong. Period.
I am also in agreement with the 12 month rule.
thank you so much.
i listened to Karen's talk a few times and I am truly happy and proud to be a member of CPSA.

salma murji
13/12/2018
Alberta Physician

I will support the College's Registrar

Rajesh Narula
13/12/2018
Alberta Physician

As a physician I have no intention to abuse (sexual ) my patients and I believe no other physician in Alberta has that intention. Physicians will get more injustice if permanent cancellation of registration becomes a law .

Jayashri Kar Nandi
13/12/2018
Alberta Physician

Earl A. D. Campbell MD FRCSC
#315 401 9th Ave. SW
Calgary, Alberta
T2P3C5
December 13, 2018

Scott A. McLeod MD CCFP FCFP
Registrar
College of Physicians and Surgeons of Alberta
2700 10020 100 St. NW
Edmonton, Alberta
T5J 0N3

Dear Dr. McLeod:

Re: Bill 21: An Act to Protect Patients

Bill 21 has already acquired Royal Assent and is now law. As it is unlikely that there will be an intervention by Her Majesty as a result of this letter, all I can hope is that when the Standards of Practice of the College of Physicians and Surgeons of Alberta are modified to comply with this law, some of the comments I make below are considered. Acknowledging that it is almost impossible to express opposition to the wording of this legislation without the appearance of advocating in favour of sexual abuse of patients, I still have to voice dissent. It should not be necessary to pronounce this but for clarity, sexual assault or abuse of patients can never be tolerated and must be exposed and expunged, both for the safety of the patients and also for the respect of the profession; patients must be able to trust their doctors. My objection to this legislation is that I believe it is both unnecessary and also too indiscriminate. Bad laws lead to bad decisions and unjust outcomes.

Bill 21 is unnecessary as the mechanisms were already in place to deal with physicians who participated in inappropriate conduct with their patients. The College of Physicians and Surgeons was created 112 years ago to address those concerns as they pertained to the practice of medicine and specifically to protect the public from unscrupulous physicians. For egregious breaches of physician conduct, the Criminal Code of Canada could also be employed and jail terms have been imposed on physicians who have abused their patients, the most recent instance coming to my attention being last week in Ontario.

Running parallel with that thought, I am concerned that this law is yet another example of the intent of government to control physicians by attacking our ability to self-regulate. For the first century of this province, successive governments believed that the best people to judge acceptable standards of behaviour within a group of professionals were honorable people within that profession. The College of Physicians and Surgeons of Alberta was founded on that premise as were other organizations including the Law Society of Alberta, the College of Registered Nurses of Alberta and the Association of Professional Engineers and Geoscientists of Alberta to name only a few. Each organization was charged with the role of being responsible for overseeing the standards of their respective professions and the conduct of their members as it was believed that members within the profession had a much better understanding of the demands and obligations of the profession than any lay person could have. For over 100 years, the College of Physicians and Surgeons did an exemplary job of ‘regulating the profession and protecting the public’. In 2007, Bill 41 was passed by the Alberta Government which gave the Minister of Health the ability to place the College of Physicians and Surgeons under his or her direct control. In effect, that relegated each of us to the possibility of practicing at the direct discretion of the Minister of Health. In 2016, as part of the Amending Agreement, the Alberta Medical Association agreed to the creation of the Physician Resource Planning Commission which gave the Government of Alberta the ability to dictate where we practice, further tightening the grip of the provincial government on our practices. Earlier this year, the Alberta Government intimated that it would like to have more lay people on the Council of the College of Physicians and Surgeons of Alberta so doctors no longer control it. Once again, with Bill 21, the provincial government is extending its reach into our practices, weakening our privilege of self-regulation. Perhaps this Bill has the best of intentions but the effect is still the same – unnecessary control by a government.

More specifically regarding Bill 21 itself, considering the wording of the legislation and the severity of the potential penalties, the burden of proof of sexual abuse or sexual misconduct is inadequate. In the documents, it readily admits that the standard of proof for sexual abuse or sexual misconduct of physicians will not be held to the same standards as a court of law and that the decisions for discipline will be held by tribunal. This is exceptionally concerning. The tribunal members will not have the same experience as a judge in determining a burden of guilt and with relaxed standards, the foundation of our entire legal system of the concept of innocence until proven guilty could potentially become compromised.

The other legal tenet that this legislation seems to violate is that the punishment should fit the crime. With this legislation, the penalties are absolute for both sexual abuse and also sexual misconduct but, especially with respect to the definition of sexual misconduct, are not reflective of the spectrum of the types of possible transgressions. I am in support of the definition of sexual abuse as outlined as it is very specific and practitioners should not be engaged in those types of activities with their active patients. Sexual predation of a patient by a physician who abuses his or her position and the trust that that entails should be treated with the harshest penalties and for cases such as Lawrence Nassar, the doctor convicted of abusing the gymnasts of the US Olympic team, a lifetime ban from the practice of medicine and also a jail sentence is correct. It protects patients from ever being exposed to him again and it sends a message to the public that that type of conduct cannot ever be tolerated. The definition of sexual misconduct in Bill 21 is more worrisome. Most definitely, active patients should never be subjected to unwelcome conduct, behaviour or remarks of a sexual nature. However, the legislation, as written, depends solely on the perception of the patient of what was said. Intention is important. Breast surgery and surgery to genitals is performed on a daily basis across the province. Almost all of us, just as we would if we were describing the healing process of some other body part, will use phrases like “that is healing beautifully” in follow up visits to describe the process of recovery and to reassure patients that they are on the correct course. As written in this law, even though there might not be any sexual connotation implied by the practitioner by such a comment, if the patient concluded that there was an inference, or simply wanted to participate in a malicious act, he or she could make a complaint and the physician would have little, if any defense. Similarly, something like a simple quip to a patient who is in the preoperative holding area and nervous about his hip replacement that there is “a lot of banging and screwing in orthopedic surgery” which is undoubtedly true but might also be interpreted as a double entendre does not warrant as much of a penalty as a physician who is actively stalking his female patients. A five year license suspension and a ten year public disclosure of a practitioner for saying “your breast looks great” to a patient with a breast cancer reconstruction is not just. This law does not allow for any discretion on the part of the tribunal to issue penalties commensurate with the magnitude of the transgression.

The timeline between when a specific doctor patient relationship ends and an intimate one can commence is going to be critical. Under the Standards of Practice, it is imperative that these timelines are well defined so all doctors are aware of the rules. Failure to do so would mean that the discretion of the tribunal would be the only arbitrating factor, posing a perilous situation for the doctor as the decision of the tribunal might differ from the physician about when the physician patient interaction ended and a reasonable amount of time passed before an intimate relationship began. A disagreement in discretion could theoretically cost the physician his or her license when no harm was actually being done to the patient. I would argue that the timeline should vary depending on the intensity of the physician patient interaction. A physician providing prolonged psychological counselling for depression for a patient is intense. The treatment of gynecological ailments requires a lot of trust by the patient. Those interactions are immeasurably different from a physician who attends a patient with a small laceration and sutures it. In my world, to give an idea of the impact or ‘power differential’ I have over those individuals, it is important to recognize that many of those patients cannot even remember my name and do not follow the explicit, written instructions I give them to arrange a follow up appointment with me to have their sutures removed. An even more minimal example would be that the spouse of a doctor injures himself and calls his spouse. Her only involvement in the care of her spouse is that she phones one of her friends to attend to her husband but she mistakenly gets listed in the billing records as the ‘referring physician’ by the treating physician whose billing clerk forgot that a doctor cannot refer members of her own family. Now, there is a record of the spouses’ involvement with the care of her husband. How long after each interaction should a physician refrain from any sexual involvement with a patient in each of these circumstances? I don’t know the answer but I would advance that the more minimal the treatment, the less the possibility of the abuse of power and thus the less restrictive the time frame. In the last example, I would argue that this is a normal interaction of a married couple and no abuse of power occurred. Admittedly, the Code of Ethics of the Canadian Medical Association excuses this type of conduct under section 20 which states “limit treatment of yourself or members of your immediate family to minor or emergency services…”. However, within the scope of this legislation, with an aggressive tribunal committed to showing how determined they are to stamping out sexual abuse, without careful wording within the Standards of Practice, there is the possibility that the tribunal might still rule that the physician was in error in that last case and issue a penalty of license revocation. I do not believe that this was the purpose of the law, it is just a possible consequence of overzealous legislation.

I am committed to the practice of medicine and follow its ancient principle of ‘primum non nocere’. I am also in favour of the spirit of Bill 21 - to protect patients from sexual abuse and to remove those from the practice of medicine who assault or abuse their patients. I am however, opposed to the wording and implementation of this legislation. It is unnecessary as the tools available to do its work are already present. It undermines the purpose of the College of Physicians and Surgeons of Alberta and may yet be another attempt to get doctors under the control of the government. Its standard of proof is not adequate to be meting out the punishment that it proscribes and Bill 21 has the potential to be responsible for issuing penalties which are far too draconian to address what should be considered minor infractions of the Code of Ethics of the Canadian Medical Association. My plea would be that if the Alberta Government is still committed to this legislation and thereby undermining the already excellent work that the College has done for over a century, that we, as doctors, are extraordinarily careful about the wording of our Standards of Practice. At a bare minimum, while remaining compliant with the law, the Standards of Practice should have specific wording to address timelines between patient physician interactions and intimate relationships that all physicians must follow. We must make reasonable allowances for the conduct of physicians who find their partners in need of medical assistance. We must also find some way to account for the enormous spectrum of indiscretions which comprise sexual misconduct so severe cases are dealt with sternly but minimal ones do not result in five year license suspensions. Failing those tasks will leave physicians to the mercy of an unaccountable tribunal who might have only a cursory understanding of medicine and law and are not obliged to follow due process.

Yours sincerely,

Earl A. D. Campbell MD FRCSC

Earl A. D. Campbell
13/12/2018
Alberta Physician

I support government’s decision to pass this legislation.

Saadia Khan
13/12/2018
Alberta Physician
Stakeholder organization

These strong actions are way overdue.

i support the content of the draft.

Maureen Bakken
13/12/2018
Alberta Physician

This is serous matter for the college and the doctor and should be investigated in an impartial manner with out prejudice

Sandrasekeram Parameswaran
13/12/2018
Alberta Physician

Overall I think the draft appears quite reasonable however I do think that the definition/description of patient re the 1 year time frame is a bit “woolly”

As a FP in a smaller rural setting my main practice is ongoing office based service however I do cover ER and also do some episodic “walk-in” sessions. I have people who I see in the latter settings more often than people in the former settings; the impression I get is the latter would not necessarily be considered my patient but the former would! Given this and the later comments on the 1 year time frame not being so to speak “cast in stone” it still remains very hard to distinguish who might be considered a patient.

All the later mentioned exeptions would also seem to lead back to the impression that the only safe option would be, as stated in the draft, to contact the CPSA or CMPA for guidance. Are you really going to find it easy to give this guidance? It appears to be a complete quagmire in the making. I do understand the difficulties making any decision on relationship based interactions of this sort but to mix metaphors this appears to be a potential minefield.

Of more interest to me I would like to say that I think the profession would also like to know about the process following any complaints/concerns not just the draft of what abuse/misconduct is.

The draft as I said appears OK on how sexual abuse and misconduct will be judged as to having occurred. However my understanding from some of the media information at the time of the Government of Alberta’s announcement was that if a complaint occurred a members licence would be suspended immediately and the impression was that there would be no compensation for loss of ability to practice if the complaint was ultimately judged to be unfounded.

As a FP who can easily see 30-40 people per day and in each contact have a single individual with me in a closed room for reasons of privacy/confidentiality; is it reasonable to expect me to obtain explicit consent every time for any physical contact, to potentially spend significant time explaining the need to ask certain questions and, even if this is done, have the fear of losing the ability to practice with no compensation or recourse hanging over my head if an unfounded complaint is made. I understand this may seem paranoid but is not completely so - we have a friend we trained with in the UK who in his GP practice was accused of inappropriate conduct. After a lengthy build up he eventually went to a meeting with the complainant who, when she actually saw him, said “that’s not the doctor I’m complaining about” and that was the end of the complaint., but not without months of stress, if he had been banned from practice to this point, hugely financial cost would have beeen incurred as well and in our current social media shaming culture possible permanent damage to his reputation.

My point is that frivolous, malicious and erroneous complaints will occur. Personally I would like some assurance that there is in our society still a place for presumption of innocence and if it is felt necessary to have blanket bans from the time of a complaint there needs to be a system of compensation from the body enforcing this, if the issue is ultimately deemed unfounded.

Edmund Barker
14/12/2018
Alberta Physician

It is totally inappropriate for health care provider to engage in a sexual relationship by any means with any of his/her previously treated patients. That shameful behavior is going to disrupt the relationship between the provider and the patient and it is going to affect the physician 's ability to judge that patient medical problems in the future. Public trust and patients confidence in that provider to deliver best medical care for them will be gone forever whether his/her permit will be revoked or suspended or not. This is a real red line that must not be crossed under any circumstances and for any cause. Definitely no excuses will justify the action. Punishment should be addressed by professionals who have deep experience in this area and should be reasonable.

Maher Jerudi
14/12/2018
Alberta Physician

It is hard to believe that Physian can go out of
Ethics by doing sexual misconduct in their practice. However If it happens in a very few number of cases out of thousands
Strict sanction should be implimented for that particular physician if it proves after through investigation instead romoval Of practice licence .

Dilip Kumar Nandi
14/12/2018
Alberta Physician

Agree on bill

Adel Gabriel
14/12/2018
Alberta Physician

I already responded

Christiaan Gerber
14/12/2018
Alberta Physician

Few questions came to my head as a pediatrician. While I totally support the concept, few faults and gaps are seen.

Is it impacting the pediatricians practice involving the parents accompanying their children? Do we need a chaperone if we are with a mom who is below 18 and coming with her child for a checkup?

Aws Al-Musawi
14/12/2018
Alberta Physician

I think there should be reassessment after appropriate rehab and each case should be managed on its merits

Michael Nutting
14/12/2018
Alberta Physician

I feel these are are all entirely appropriate. There should be no excuse for sexual relationships of any kind with a patient as described

Dennis Dahjl
14/12/2018
Alberta Physician

excellent guidelines
excellent clarity
excellent review of potential conflicts scenarios
clear cut well done
thank you

Leon Lefebvre
14/12/2018
Alberta Physician

Physicians who commit sexual abuse of a patient should be given the same treatment as a physician who has a substance use disorder
They should be offered psychiatric treatment and when in remission closely monitored
If after stringent assessments and close follow they no longer demonstrate harmful urges they should be allowed to practice
Thus would involve continued monitoring of their clinical practice and psychiatric follow up

Jane Gainer
14/12/2018
Alberta Physician

Generally well done. I wonder if the definition of “spouse” shouldn’t be expanded to include relationships which are beyond being married to each other. Common law unions of male/female, or (fe)male/(fe)male are now commonly accepted as spousal relationships.

D Neil Graham
14/12/2018
Alberta Physician

Very well done!! Congratulations!

Waldemar Szymanski
15/12/2018
Alberta Physician

It is just sad that we have to have such discussion in this day and age. Our profession and our oath is hurt and injured, possibly permanently, because of such discussion. There are matters in life which should be applied "without saying" and is better unspoken of. The fact that a regulatory body had to issue disciplinary measures and new "code" in the year 2019 is just utterly sad. Having said repeatedly how "sad" this whole process is, I understand that we are in an era of "political correctness" which seems to be in control of many aspects of our lives on a personal, and now on professional levels

Hani Ayad
15/12/2018
Alberta Physician

Excellent rules as part of physician/patients relationship.

Youssef Mikhail
16/12/2018
Alberta Physician

Agree

Mary Michaiel
16/12/2018
Alberta Physician

As a psychiatrist who has assessed and treated physicians with sexual boundary violations, I am very concerned about government mandating blanket consequences, rather than allowing us to engage in expert self-regulation of our profession. Research shows that some physicians can be successfully rehabilitated after SBVs, with appropriate treatment and monitoring (see Glen Gabbard’s extensive work in this area). Research shows that most occurrences are with one patient, in the context of a physician in distress. Only a small number of SBVs are committed by psychopathic predators, with repeat offences, who are not candidates for rehabilitation. Some occur in the context of unrecognized psychiatric conditions in the physician, such as major depression or bipolar disorder, which can be treated and the physician returned to safe practice. If we wish to reduce the stigma of mental illness for our patients, the same must apply to our profession. While I in no way condone SBVs in our profession, I believe that medical experts are best qualified to assess and apply appropriate consequences, including treatment where indicated, and sometimes return to monitored practice. I am not clear on what evidence the government has acted to put forward this legislation. I am also very concerned about the very limited time given for consultation and response - effectively no real consultation, as I rush to put something forward for consideration.

Elizabeth Wallace
16/12/2018
Alberta Physician

I think the process is going on the right track

Alfaisal abdulwanis
16/12/2018
Alberta Physician

I think this new legislation is likely a response to recent events in Hollywood and not Alberta medical practice. Physicians and patients are on the same side and the government has lost sight of that.

A 5-year suspension is effectively a lifetime ban. Therefore, healthcare providers now are faced with the loss of their career over potentially any statement that any patient might find inappropriate.

The CPSA must ensure that definitions of sexual abuse and misconduct are objective and clear. Furthermore, healthcare providers deserve the presumption of innocence in the same manner as people charged with crimes. The CPSA will have to ensure that when these punishments are handed out the healthcare providers whose livelihoods are ruined are actually guilty of the offence.

Luc Benoit
17/12/2018
Alberta Physician

Adequate and appropriate. Very similar to CPSO under which I practiced from 1980. I found this standard of practice very clear and was a daily consideration in practice.

Thomas R Owens
17/12/2018
Alberta Physician

Good initiative to educate physician about sexual abuse and sexual misconduct .

Rana Hossain
17/12/2018
Alberta Physician