Toronto doctor Javad Peirovy was found guilty three years ago of sexually abusing four female patients.
He “inappropriately touched” their breasts, they reported to the College of Physicians and Surgeons of Ontario (CPSO), the self-regulator of doctors in the province.
A college prosecutor argued Peirovy should lose his licence in the name of patient safety. But a disciplinary panel instead gave him a much lighter penalty, which included a six-month suspension.
The prosecutor successfully appealed and the Ontario Divisional Court agreed the penalty was too lenient: “It was inadequate to protect the public and vindicate the integrity of the profession … The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest.”
It’s cases like this that have placed Ontario’s oversight system for health professionals under the microscope. The self-regulatory system — which governs everyone from doctors, nurses and dentists to homeopaths, naturopaths and Chinese medicine providers — is considered by many to be too protective of professionals, outdated, and not robust enough to achieve its central mandate: to serve and protect the public.
There have long been calls for major reform and they are growing louder. They include demands to scrap self-regulation.
The four patients in the Peirovy case visited walk-in clinics where the general practitioner worked in 2009 and 2010. The women, between the ages of 18 and 32, were seeking treatment for relatively minor ailments — a sore throat, cold, sinus and ear infections. Peirovy performed chest examinations on them. They emerged from their appointments shaken.
The patients reported to college investigators that Peirovy did not seek permission to touch their breasts. Their accounts of the examinations, contained in court documents, describe him sliding his hand under clothes, cupping breasts and touching nipples. Two women said he listened to their chests by placing his stethoscope directly on their nipples. Another told of him “pinching” her nipple.
The four women — plus two other patients — also took their complaints to police. Peirovy was charged with six counts of sexual assault and later pleaded guilty to two counts of simple assault.
Meantime, he continues to practise, with restrictions, as a legal tussle over the fate of his medical licence wends its way through the courts. Peirovy last year took the case to the Ontario Court of Appeal and a decision on whether he will face a new penalty hearing is pending.
This case is one of many that, over the years, have raised doubts about the oversight system. Appetite for significant reform is growing, even among regulators, who are now looking at a “radical paradigm shift.” Ideas for change are also coming from experts in regulatory governance, critics of the existing system, patient advocates and a think-tank commissioned by the province to look into oversight modernization.
Under the system of self-regulation, professions govern themselves through 26 colleges, which get their legislative authority from the provincial government. They investigate complaints, discipline wrongdoers, set practice standards and administer quality assurance programs to ensure professionals are up to snuff.
Leading the charge on reform is the largest health regulator: the College of Nurses of Ontario. It governs 175,000 nurses, or 58 per cent of Ontario’s entire regulated health workforce of 300,000-plus professionals.
Its boldest recommendation is to eliminate elections from within nursing’s ranks to the college’s governing council, its main decision-making arm.
College councils comprise both public members and professional ones, the latter usually forming the majority. Public members are appointed by government via Orders-in-Council from the lieutenant-governor. Most professional members are elected by peers though some are appointed by academic institutions.
The term self-regulation refers to councils being controlled by professionals, most of them elected.
Critics have long called for an end to council elections, charging they create an inherent conflict of interest.
Medical malpractice lawyer Paul Harte, one of the most outspoken critics and a long-time advocate of reform, charged that elected regulators often put the interests of peers who elect them first: “This is the main reason that Ontario’s self-regulated colleges have been consistently resistant to change and slow to respond to demands for (improved) regulation in the public interest.”
The nurses college decided back in 2014 to explore whether it could do a better job of serving the public. Its council voted in favour of a governance review and a task force was subsequently established to do the legwork. Casting a wide net, it looked at best practices around the world, studied literature on regulatory governance and took note of international trends.
The task force presented its findings and recommendations to the college’s council in 2016. Council endorsed the package, now known as Vision 2020, in reference to the year it hopes the provincial government will pass legislation to enable the most ambitious of its recommendations, including the elimination of council elections.
In the meantime, the nurses college plans to make headway on recommendations it already has authority to act on. Additional proposals in Vision 2020 include:
- Replacing the 37-member council with a much smaller, 12-member board of directors, half of whom would be nurses and the other half members of the public. Research shows smaller entities are better decision-makers.
- Appointing all directors based on “competencies” — areas of expertise such as risk management, finance and patient safety — through a process yet to be determined.
- Establishing advisory groups to provide the college with more expertise in areas, for example, such as remote nursing and mental health.
“In the end, they (task force) decided on a governance model that was a radical paradigm shift away from what Ontario is doing now,” explained Anne Coghlan executive director of the nurses college.
The nurses college report has attracted much attention. College officials have made presentations about it to other regulators in Ontario and other provinces. The report will be on the agenda this fall at a meeting of the Federation of Health Regulatory Colleges of Ontario — an umbrella group for the 26 colleges.
Federation members also plan to look at reform ideas being advanced by a subgroup of six large regulators, the Advisory Group for Regulatory Excellence (AGRE). Comprising the colleges of dentistry, medicine, nursing, optometry, pharmacy and physiotherapy, AGRE was formed in 2012 to improve how transparent regulators are about errant members. Since then, it has also been exploring ways for colleges to improve the calibre of their governing councils and various committees.
AGRE is chaired by Irwin Fefergrad, registrar of the Royal College of Dental Surgeons of Ontario. Like nurses, dentists also embrace oversight modernization.
“The world is changing. There is more and more focus on the public interest and giving that priority over the professional interest. The public is more informed and we are trying to meet their higher expectations,” Fefergrad said.
The dentists college has over the years diluted the role of elected professional members. Unlike most other colleges, its council has a majority of appointed people rather than elected ones.
Back in 2001, the dentists adopted a “two-year-cooling-off” rule aimed at lessening the potential for conflicts of interest. It requires dentists planning to run for council to first recuse themselves for at least two years from any involvement in advocacy work for the profession, for example, with the Ontario Dental Association.
“Nobody is under any illusion as to why they are here,” Fefergrad said. “We have only one mandate and that is to act in the public’s interest. We don’t represent, at all, the profession.”
He said the rule has been so successful that he doesn’t see the need to nix council elections.
To further ensure elected members are aware of their role, the dentists college is now creating a “boot camp” course for dentists planning to run for council. It’s a primer that spells out that the mandate of the college is to protect patients.
Over at the CPSO, progress is also being made, though not as fast or to the extent that critics such as Harte would like. CPSO spokesperson Tracey Sobers highlighted the following:
- CPSO council in February initiated a governance review.
- Some recommendations made by the college were incorporated last year into new patient protection legislation aimed at improving transparency and further combating sexual abuse.
- The college continues to push the province to make legislative and regulatory changes to improve the disciplinary process. It wants access to a broader pool of public members to serve on disciplinary panels. And it wants to prevent council members from sitting on its disciplinary committee, which is supposed to act independently of the college.
Preventing the overlap of members on council and the disciplinary committee is significant in light of the controversial Peirovy case. The chair of the disciplinary panel that handed down what has been criticized as a light penalty for sexual abuse was Dr. Marc Gabel, a Toronto general practitioner who practises psychotherapy. At the time, Gabel was also a member of the college’s governing council. And prior to that he had served as president of college, elected to the position by fellow council members.
In 2014, while serving as president, Gabel appeared on TVO’s The Agenda as part of panel discussing the effectiveness of the CPSO in holding doctors accountable. He locked horns with Michael Decter, chair of Patients Canada and former deputy minister of health for Ontario. Decter said the college was not doing enough to keep patients safe, especially from repeat sexual abusers. Gabel argued it was.
Coghlan concedes the idea to eliminate council elections is raising the most eyebrows: “When we talk to other councils, this is the most controversial part of our vision. From a public interest perspective, our council decided that it is imperative that there be no appearance of professional interest.”
Eliminating elections would clear up any confusion about who the college is there to serve, she argued.
“The college mandate is focused on public safety, yet the evidence is very clear that elections give the perception — to the voters, the public, the media — that your role on the board is to represent those who elected you. Whether that is real or perceived, it is the perception,” she said.
The nurses’ ideas are resonating with some in medical community. Dr. Rocco Gerace, the recently retired registrar of the CPSO, said he expects that the nurses college recommendations will come to fruition.
“I believe it is only a matter of time before we see these types of changes introduced in professional health-care governance in Ontario,” he wrote in an parting essay to doctors, titled “Reflections and Predictions.”
The governance structure of professional regulation will “look a lot different” in future, he stated.
“I believe the term ‘self-regulation’ is well on its way to the dustbin of history. In the future, college work will no longer be described as ‘the privilege of self-regulation,’ but instead ‘the responsibility of medical regulation,’” he continued.
Gerace also wrote that he expects medical regulation will evolve to be more proactive rather than reactive, with more emphasis on education and promotion of continuous quality improvement.
His essay has caused a stir among some in the profession. Dr. Shawn Whatley, president of the Ontario Medical Association (OMA), responded to it on his personal blog in a post titled “Is Self-Regulation Dead?” He wrote: “If self-regulation is dead, then the college is dead. If self-regulation is dead then we have a government regulator … We should insist on clear boundaries between those who create the laws, those who enforce the laws, and those who mete out punishment.”
Harry Cayton, chief executive of the Professional Standards Authority (PSA), an umbrella oversight body for health and social regulators in the United Kingdom, said it’s not surprising to see such tensions as the role of regulators evolves.
“A lot of regulation is about professional power. If you think about the history of regulation, it grew out of the guilds. That was about who became a goldsmith and who became a baker,” he explained. “These bodies have basically grown out of a 19th century structure that, in my view, is not fit for purpose in the 21st century.”
Cayton is considered an international authority on risk management and regulatory governance. With the PSA, he has published a number of papers on reform and has been commissioned by jurisdictions around the world to undertake reviews of their regulatory systems.
The UK’s regulatory system has undergone significant reform over the last two decades, largely in response to a number of scandals including the killing of at least 250 patients by the notorious Dr. Harold Shipman. The family doctor injected patients with lethal doses of morphine.
Professions essentially lost the authority to self-regulate, the number of regulatory bodies was cut, and the PSA was created as an independent body accountable to the UK parliament. In overseeing regulators, it assesses their performance, holds them to standards, conducts audits, scrutinizes disciplinary decisions and reports to government. The PSA also oversees the recruitment and selection of individuals to serve on regulatory bodies.
Cayton has visited Ontario five times in as many years to consult with regulators and government officials about reform. He was here in February which is when he took time from his busy schedule for an interview with the Star.
When asked what shortcomings he sees in Ontario’s system, Cayton immediately seized on the legislation that governs colleges, the Regulated Health Professions Act. It was seen as pioneering when it was passed more than a quarter of a century ago, but today its rigidness is holding back health-care transformation, he said.
“If you embed regulatory rules into the law, you get stasis, you get stuck. It’s impossible to change things,” Cayton explained, adding that the framework is a bad fit for a world of rapidly and continuously evolving technology, science and medicine.
A reformed oversight system would ideally have flexibility to adapt to new innovations and new ways of delivering care, he said.
Cayton noted that health care is increasingly delivered by teams of workers yet the regulatory framework is siloed, focusing on individual categories of workers, for example, nurses or doctors. It restricts what activities they can perform and holds them back from embracing broader scopes of practice.
As well, the legislation does not cover categories of health workers who play increasingly important roles, such as personal support workers and paramedics, he remarked.
“We need it to be more fluid. We need a different range of skills,” Cayton said.
Fefergrad would like to see Ontario follow the UK’s lead and create an equivalent of the PSA, a body to ensure health regulators are doing their job. It need not be created from scratch, he emphasized, noting there are a number of organizations already in existence in the province that could take on the role.
“Accountability is really key and I think creating a kind of model that they have in the UK that would hold our feet to the fire would be terrific. We would welcome it,” Fefergrad said.
He would also like Ontario to reduce the number of regulatory bodies as the UK has done. It’s not necessary to have 26 colleges, he said, noting the number could be drastically cut with those remaining overseeing multiple categories of workers.
More thoughts about oversight reform have come from the McMaster Health Forum, a think-tank based out of McMaster University. The forum released a report in February identifying the existing governance structure as outdated and ill-suited for a future of aging patients with multiple chronic conditions, growing public expectations and changing models of care delivery.
“Ontario’s health system has evolved substantially in the past two decades, however, the way in which the health workforce is governed has not kept pace with these changes,” states the report, commissioned by the provincial government.
The report contains no recommendations. Instead it identifies problems and observations from two groups: a panel of citizens representing a cross-section of Ontarians; and a group of stakeholders, including regulators, professional associations, health ministry policy-makers, and representatives from various health sectors.
There is no consensus and there are areas of disagreement.
The forum report states that the coming provincial election could serve as a good opportunity to get the issue of improved oversight on the public agenda. It cites an abundance of literature showing a connection between “large-scale policy reform” and electoral processes in Canadian provinces such as: “new government or government leaders, campaign commitment to reform, appointment of a champion once in power, and a policy announcement in the first half of a mandate.”
A highly placed source who works closely with the colleges expressed optimism that the time is ripe for reform in Ontario. Taken together, the election and mounting interest from different quarters, could serve as the impetus to spark comprehensive change, specifically in how regulators are structured and their governing arms selected, said the source who spoke on the condition of anonymity. A skilled, independent oversight body could benefit everyone including patients, the public and even regulators, added the source, who is not authorized by the colleges to speak publicly.
“This constellation of events might be a once-in-a-generation opportunity to fundamentally rethink the regulation of health professions,” the source said.
https://www.thestar.com/news/canada/2018/03/25/the-radical-paradigm-shift-thats-changing-ontarios-oversight-system-for-health-professionals.html
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