Sexual Abuse Prevention Program 2015

Note: This article was originally posted in our December 2015 newsletter, and has not been updated.

The Health Professions Procedural Code (“the Code”) of the Regulated Health Professions Act (RHPA) requires all Colleges to have a program in place to prevent and deal with the sexual abuse of clients. While the CMO has had a sexual abuse prevention program in place since 1994, the program was due for extensive review and revision. The College’s Client Relations Committee led this review, which included research regarding sexual abuse prevention strategies, tools and regulations across professions and jurisdictions, legal counsel review, expert review, and an open consultation with the public, members and stakeholders. At the recent November Council meeting, the revised Sexual Abuse Prevention Policy and Guideline to Appropriate Professional Behaviour with Clients were unanimously approved.

There are a number of important considerations for midwives in these two documents – they are highlighted below.

Treatment of Spouses

In acknowledgment of the power imbalance that is inherent in the care provider-patient relationship, the Regulated Health Professions Act (RHPA) defines all physical sexual relations between care provider and patient, and any sexual touching, behaviour or remarks from the care provider toward a patient as sexual abuse, even when a patient is a spouse. In 2013, Bill 70 amended the RHPA, granting Ontario health regulatory colleges the authority to make regulations exempting the treatment of spouses from the definition of sexual abuse described within the legislation, if appropriate.

Although some health Colleges have pursued a spousal exemption to the RHPA (e.g., Royal College of Dental Surgeons of Ontario), the College of Midwives will not pursue an exemption. The rationale for this is the recognition of the power imbalance that exists, between spouses, in the midwife-client relationship. A spousal relationship may compromise objective judgment by the midwife and the client and blur sexual boundaries. Some midwives have argued in favour of spousal exemption so that midwives could provide care to spouses in circumstances where midwifery services may be limited. While the College recognizes its decision may limit choice of care provider to a small number of individuals, the greater good of protecting the public from misconduct and sexual abuse is paramount.

One-Year “Cooling Off” Period

Council has approved a one-year “cooling off” period, whereby a sexual relationship that occurs between a member and a former client will not be prohibited if at least one year has passed since the termination of the midwife-client relationship.

Reporting of Sexual Abuse Allegations to the Police

Council has decided that the College will report allegations of sexual abuse against a midwife that have been referred to the Discipline Committee (and are therefore public, as that information appears on the public register) to the police. Council debated the matter of police reporting, asking if a client or member might hesitate to report sexual abuse allegations regarding a midwife if there would be an automatic report to the police made. Since referrals to Discipline are public information on the register, there is no increased risk to making the allegations referred to Discipline publicly known to the police. This recommendation also protects members whose allegations against them are unfounded and/or frivolous and vexatious.

Task Force on the Prevention of Sexual Abuse of Patients

Earlier in the year, Health Minister Hoskins announced the development of a “Task Force on the Prevention of Sexual Abuse of Patients” that will review the provisions of the RHPA and make recommendations to strengthen College’s authority in this area. The results of the Task Force are not available at this time, but will be reviewed by the Council, and shared with members, when they are released.

Reminder: Midwives are required to report sexual abuse.

What are midwives required to report?

If a midwife believes that a regulated health professional has sexually abused a client or patient, the midwife is required to report the abuse to that professional’s regulatory college. This is a requirement under the Regulated Health Professions Act (RHPA) and applies to all regulated health professionals. The obligation arises if a midwife has “reasonable grounds, obtained in the course of practising the profession, to believe” that another regulated health professional has sexually abused a patient or client. This means that mere suspicion is not enough.

A midwife is not required to make a report if she learned of the possible sexual abuse in some way other than in the course of practising midwifery. For example, if a midwife learns of the suspected sexual abuse through a social situation, the obligation to report does not arise.

What is sexual abuse?

The RHPA defines sexual abuse broadly to include:

• sexual intercourse or other forms of physical sexual relations between the member and the patient
• touching, of a sexual nature, of the patient by the member, or
• behaviour or remarks of a sexual nature by the member towards the patient.

While other sexual conduct might amount to professional misconduct (such as sexual harassment of a colleague), midwives are only required to report sexual abuse by a regulated health professional of a patient or client.

Why are midwives required to report?

Mandatory reporting is a critical element of the RHPA’s objective to eradicate sexual abuse. If colleges are not aware of sexual abuse by their members, they cannot take effective actions to address the misconduct and prevent future abuse. At the same time, the RHPA aims to protect client consent and confidentiality. Midwives can only disclose the name of the patient or client who was the subject of the abuse if the patient or client provides his or her written consent. If a midwife’s own client discloses that she has been sexually abused by another health professional, the midwife must use her best efforts to inform the client of the midwife’s reporting obligations before making the report.

How should midwives make a report?

Midwives are required to make a mandatory report of sexual abuse to the Registrar of the college that regulates the health professional who is alleged to have committed the abuse. For example, if a client discloses to a midwife that the client was sexually abused by a physician, the midwife should report to the Registrar of the College of Physicians and Surgeons of Ontario. If a client discloses that she was sexually abused by another midwife, the report should be made to the Registrar of the College of Midwives of Ontario. The report must include:

• the name of the midwife making the report;
• the name of the health professional who is the subject of the report (if the midwife does not know the health professional’s name, the midwife is not required to make a report);
• an explanation of the alleged sexual abuse; and
• if the report relates to particular patient or client, the name of the patient or client, but only if the midwife has the patient or client’s written consent.

When do midwives have to report?

The report must be made within 30 days. However, if the midwife believes that the health professional will continue to sexually abuse the patient or will sexually abuse other patients, the midwife must make the report right away.

Are midwives protected if they report?

Yes, the RHPA provides that a midwife cannot be sued for making a report as long as it was done in good faith.

For more information, please refer to the College’s Guide on Mandatory Reporting Obligations. In addition, College staff are available to provide information to assist the public, midwives, and practices in meeting mandatory reporting requirements. For more information about making a report, please e-mail the Professional Conduct Department at iandh@cmo.on.ca or call 416.640.2252 ext. 224.