The hashtag “MeToo” went viral in October of 2017. In the two years since then, the movement has had a significant impact on society. It’s had a weighty effect on professional regulators as well. What changes have we seen so far and what changes are we predicting for the future?
Increased number of complaints of sexual misconduct. The MeToo movement has encouraged victims to speak up and come forward. This is true when it comes to victims of sexual assault in the criminal law context, but it’s also true in terms of victims of sexual harassment or sexual misconduct more generally. As such, one impact of the movement is that professional regulators are now receiving more and more complaints about sexual misconduct. This is especially the case for regulators under the Health Professions Act as a result of the highly publicized changes made to the legislation earlier this year under Bill 21, An Act to Protect Patients.
Enhanced public scrutiny. #MeToo has led to a critical appraisal of how all organizations handle complaints of sexual misconduct. What this means is that from the moment a complaint of sexual misconduct comes in, every single thing the regulator does (or doesn’t do) may come under a microscope. It goes without saying that the ultimate decision on the merits of the complaint will be closely analyzed. However, the various communications and other decisions along the way (such as whether to impose interim measures or close the hearing to the public) are also likely to be meticulously examined.
An increased connection to social media. Just as the MeToo movement has its origins in social media, regulators should be prepared to see accusations of sexual misconduct play out over social media. Complainants may decide to go public with their complaint on social media before or instead of making a formal complaint to the regulator. If or once the regulator becomes involved, the regulator should be prepared to have its process referred to and exposed on social media as well. For example, a witness, after receiving a notice to attend a hearing, might decide to post a picture of the notice on Facebook or Instagram. Regulators should start developing social media strategies to address such issues.
Increased awareness and decreased skepticism. Historically, complaints of sexual misconduct have been met with significant skepticism. Now, however, there is greater awareness and acceptance around the pervasiveness of sexual misconduct. This relates also to the “I believe her” approach or #Ibelieveher which is the idea that when someone accuses another person of sexual misconduct, the presumption should be that the accuser is likely telling the truth because the risks of going public with the complaint are great. While it’s important to counteract the historical skepticism against complaints of sexual misconduct, the “I believe her” presumption cannot easily fit with a number of the legal principles necessarily present in the regulator’s investigation and adjudication processes (such as the presumption of innocence and the burden of proof). To take all of this into account, regulators should:
- guard against the traditional skepticism that has at times been the response to complaints of sexual misconduct and replace it with an open-minded and supportive approach; and
- continue to apply the presumption of innocence, investigate in a fair and neutral way, and require that all complaints be proven on a balance of probabilities before a finding of misconduct is made.
A shift in sanctions. The evolution in understanding brought on by the movement will also cause many regulators to reconsider whether the typical range of sanctions for sexual misconduct is out of step with current societal norms. Since, in any given case, the sanctions given in similar cases is a factor in determining the appropriate sanction, regulators will have to be deliberate and patient when it comes to shifting the range of sanctions. An example of how regulators will be required to balance current societal norms with consistency in sanctions is found in the Ontario Court of Appeal’s decision in College of Physicians and Surgeons of Ontario v Peirovy.
In Peirovy, the Discipline Committee of the College of Physicians and Surgeons of Ontario found Dr. Peirovy guilty of sexual abuse of four patients and ordered a six month suspension of Dr. Peirovy’s medical certificate, a reprimand, and terms and conditions upon his return to practice. This included having a female practice monitor present while treating female patients.
The CPSO appealed the Committee’s sanction order to the Divisional Court and the Divisional Court allowed the appeal and quashed the sanction order (2017 ONSC 136). The Divisional Court acknowledged that the Committee’s sanction order was within the historical range of penalties for similar offences, but held that “a litany of clearly unfit penalties does not justify the penalty imposed in this case” (para 38). The Divisional Court noted that community standards had changed and opined that any penalty less than revocation or a multi-year suspension was manifestly unfit.
Dr. Peirovy appealed the Divisional Court’s decision to the Court of Appeal and the Court of Appeal allowed the appeal, set aside the Divisional Court’s decision and restored the Discipline Committee’s sanction order (2018 ONCA 429). In reaching this decision, the Court of Appeal explained that it was not open to the Divisional Court to completely resile from the historical range of penalties for similar offences: “The Divisional Court should not have simply declared that the penalties imposed in the cases making up the well-established range, of which it was not seized, were wrong. The penalties imposed in those case were not appealed and, in some cases, were the result of joint submissions by the College and the offender … The Divisional Court should not have opined, long after the fact, that penalties in a whole series of cases, which were ‘intricately bound’ to their own factual contexts, were incorrect” (para 81). The Court of Appeal also explained that while changes to legislation may be suggestive of shifting societal norms, cases must be adjudicated based on the law in force at the time the conduct at issue occurred. The Court of Appeal held that the legislative changes in Ontario that would have resulted in the mandatory revocation of Dr. Peirovy’s medical certificate were mostly irrelevant as the legislative changes were not in force at the time the conduct occurred.
Increased legislative intervention. Policy makers have started to conclude that self-governing professions are not taking adequate steps to prevent or address sexual misconduct. This has led to increased legislative intervention. For example, over the last couple of years, Ontario’s Regulated Health Professions Act was amended by Bill 87, Protecting Patients Act, 2017, and Alberta’s Health Professions Act was amended by Bill 21, An Act to Protect Patients. These updates to the legislation have strengthened or introduced mandatory sanctions for offences related to sexual abuse or misconduct.
The need for increased training for staff, investigators and adjudicators. There are many challenges when it comes to investigating and adjudicating complaints of sexual misconduct. Complainants in these types of matters are often traumatized and vulnerable, while regulated members accused of this type of misconduct may be extremely defensive and perhaps combative. Because of these complicating factors, and also because of the increase in the number of these types of cases, there may be a need for specialized training. What assistance and supports should be provided to complainants and how can fairness to regulated members be maintained? The idea of additional training will be familiar to regulators falling under Alberta’s Health Professions Act, as one of the amendments under Bill 21 required all regulators to make every reasonable effort to ensure that hearing tribunal members have received training on trauma-informed practice and sexual violence.
The need to be clear. The rules relating to sexual misconduct must be clear. The membership should know what standards they are required to meet and the public should know what they can expect from the profession. Regulators should ensure that their standards of practice, code of ethics and other guidelines provide appropriate guidance and information.
The need to be proactive. Regulators in Canada have typically been reactive in nature when it comes to responding to issues of sexual misconduct. However, there is a new trend towards being more proactive with respect to these types of issues. For example, some regulators are: examining their internal processes for dealing with sexual misconduct complaints; enhancing the supports they offer to complainants; and evaluating the culture of their profession and what steps can be taken to prevent sexual misconduct. To be proactive, regulators should consider the following:
- What factors may be contributing to sexual misconduct in the profession?
- How can sexual misconduct in the profession be reduced or eradicated?
- What guidance is being given to the membership and the public?
- Do the standards of practice, code of ethics and other guidelines clearly set out what is expected of members? Do they clearly set out what the public can expect?
- Are the potential consequences of this type of misconduct clear?
- What role are employers expected to play when it comes to preventing and reporting sexual misconduct?
- What resources are available to employers and members?
- What resources are available to complainants and the public?
It is unavoidable that the MeToo movement will impact regulators for many years to come. Enlightened regulators will assess the impact of the movement and take proactive steps.
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