FAQ About the Amendments to the Health Professions Act: Sexual Abuse and Sexual Misconduct

  •   July 5, 2019

The June 11, 2019 Webinar “Understanding Bill 21, An Act to Protect Patients” with Leanne Monsma provided the opportunity for members of Physiotherapy Alberta to gain further understanding of the amendments to the Health Professions Act (HPA) which received Royal Assent in 2018. This article will address some of the most common questions that arose during the webinar.

When do the Standard and the Amendments to the HPA Apply?

All health professionals who are regulated members of a College governed under the HPA are subject to the amendments to the Act related to sexual abuse and sexual misconduct. Professionals who are not governed under the HPA are not subject to these rules.

What does that mean?

Physiotherapy Assistants (PTAs) are not governed under the HPA, meaning that these rules do not apply to them. However, PTAs and other individuals working as unregulated health professionals work under the supervision and at the direction of regulated health professionals. The physiotherapist is required by the Standards of Practice to supervise the work of the PTA and to ensure that the care provided by the PTA is safe and effective.

The behaviours defined as sexual abuse and sexual misconduct within the legislation are not acceptable in a clinical environment and are not consistent with safe and effective care. If a PTA were to engage in such conduct, the physiotherapist is expected to put a stop to the conduct in question. While the physiotherapist would not be held responsible for the PTA’s conduct, whether that conduct constitutes sexual abuse or sexual misconduct, the physiotherapist would be held responsible for the assignment of care to the PTA and for the supervision they provided.

If a PTA were to engage in the behaviours in question, the patient’s recourse would be to contact the owner/manager of the physiotherapy practice or the police to make a complaint about the conduct of the PTA.

Patients and families

The legislation specifically pertains to the conduct of regulated health professionals towards patients. Within the Standard the term “patient” is specifically defined based on the formation and the duration of the therapeutic relationship. However, within the Glossary of terms of the Standards of Practice, it is identified that there are times when a “patient” may include the patient’s family members.

At this time, it is unclear how a Hearing Tribunal or the courts would interpret these definitions and the application of the Sexual Abuse and Sexual Misconduct Standard of Practice if a physiotherapist were to engage in a sexual relationship with a patient’s family member. In light of this uncertainty, physiotherapists are advised to err on the side of caution, particularly given the significance of the potential penalties that can be incurred if a Hearing Tribunal were to find that a physiotherapist had engaged in sexual abuse of a patient.

What if the patient makes sexually explicit comments towards, or engages in touching of a sexual nature of the physiotherapist?

Several attendees of the webinar raised this concern. While Physiotherapy Alberta acknowledges that there are times when such scenarios may occur, the amendments to the HPA pertain to the conduct of the physiotherapist or regulated health professional only. Members, managers and employers are directed to review Occupational Health and Safety legislation regarding employer responsibilities to provide safe work environments, and Physiotherapy Alberta’s Managing Challenging Situations Guide for more information about how to manage a situation where a patient is making unwanted sexual comments or engaging in other unwanted sexual behaviours towards a physiotherapist.

Physiotherapists are also reminded that even if it is the patient who seeks to initiate a sexual relationship with the physiotherapist, under the HPA and Physiotherapy Alberta’s Sexual Abuse and Sexual Misconduct Standard, the physiotherapist must abstain from such a relationship.

What do physiotherapists need to know about consent?

Consent is a key consideration when working with any patient population. With the changes to the legislation, there has also been an increased focus on consent. This is a topic that Physiotherapy Alberta has highlighted through several resources and articles. Some key principles to know:

  • Consent is an ongoing process, not a one-time event.
    • Patients can revoke consent at any time.
    • Physiotherapists need to informally reaffirm consent both during a treatment session and between sessions. This means regularly checking in with the patient to ensure that they are ok with proceeding with the assessment or treatment plan.
    • For example, if you were doing manual muscle testing of an entire limb you could explain, “part of this assessment requires me to test the strength of different muscles by placing my hands on different parts of your arm, shoulder and back, is that OK?” gaining consent and then monitoring the patient’s reactions as you proceed with testing.
  • Informed consent is the only valid form of consent.
    • Informed consent requires that the patient understands what it is that the physiotherapist is planning to do and why, the risks of the assessment or treatment proposed, the risks of not undergoing the assessment or treatment proposed, and the patient’s right to decline the proposed assessment or treatment at any time.
  • Consent can be in written or verbal form.
    • If the physiotherapist chooses to accept verbal consent, they must document that consent was received and the process they went through to obtain consent.
    • If the physiotherapist seeks written consent, they need to do so following the informed consent discussion, not before the discussion.

Review the Consent Guide for Alberta Physiotherapists and the November 2018 Good Practice article on consent for more information.

How was the 365-day duration of the therapeutic relationship determined?

This is admittedly a somewhat arbitrary decision. There is no research that we know of that has investigated how long a therapeutic relationship endures. Different lengths of time and other considerations (such as the nature and duration of the therapeutic relationship) were debated when Physiotherapy Alberta was deciding how to define the word patient.

In the end, we settled on 365 days as we felt there needed to be a clear time limit for the duration of the therapeutic relationship. We did not want to create uncertainty by adding subjective considerations to the definition. When we chose 365 days, we considered our understanding of what the Government of Alberta was looking for, what other Alberta Regulatory Colleges were doing, and precedents set in other provinces with similar legislation.

What are the reporting requirements for employers?

When it comes to employer responsibilities, the Act requires that “if, because of conduct that in the opinion of the employer is unprofessional conduct, the employment of the physiotherapist is terminated or suspended or the regulated member resigns, the employer must, as soon as reasonably possible, give notice of that conduct to the [College] Complaints Director.”(HPA, Section 57(1))

If the employer has reasonable grounds to believe that a physiotherapist’s conduct is, in the opinion of the employer, sexual abuse or sexual misconduct, they must “as soon as possible, give notice of that conduct to the complaints director.”(HPA, Section 57(1.1))

Note the key parts are that it is the employer’s opinion that matters, and that it is “reasonable grounds to believe,” not “proof” that is required. Physiotherapy is a self-regulating profession, meaning that we must all seek to uphold the Standards. The employer is not meant to be judge and jury. They are meant to flag conduct that is questionable so that the College can investigate the matter and take appropriate measures to protect the public from further risk of harm. An employer who fails to make a mandatory report under Section 57 of the HPA can be fined.

In other words, if you are an employer and you know, have reasonable grounds to believe, or have had a patient report an incident that in your opinion meets the definitions of sexual abuse or sexual misconduct under the Act, you are required to report this to Physiotherapy Alberta as soon as possible.

What could a five-year suspension mean in a practical sense?

When it comes to a finding of sexual misconduct, a Hearing Tribunal has a few options regarding sanction:

If a Hearing Tribunal makes “a decision of unprofessional conduct based in whole or in part on sexual misconduct, the hearing tribunal must order the suspension of the investigated person’s practice permit for a specified period of time” (HPA, Section 82 (1.1(b))) (emphasis added).  There is no minimum or maximum duration for a suspension, it could be as short as one day, or years in length.

The Hearing Tribunal could also opt to cancel the practice permit of a person whose conduct constituted unprofessional conduct based in whole or in part on sexual misconduct. In this case, the person “may not apply for the practice permit to be reissued and the registration to be reinstated until at least 5 years have elapsed from the date that the decision of unprofessional conduct was made by the hearing tribunal” (HPA, Section 45 (4)).

If a hearing tribunal were to suspend or cancel a physiotherapist’s registration, once the suspension is lifted or the physiotherapist were eligible to able to apply to have their practice permit reissued, they would need to meet the requirements for registration, including the practice hours requirement. Depending on the duration of the suspension, the member’s ability to return to practice could be impacted.
When it comes to a Hearing Tribunal’s finding of sexual abuse, the sanctions are established in the legislation:

If a Hearing Tribunal makes “a decision of unprofessional conduct based in whole or in part on sexual abuse, the hearing tribunal must order the cancellation of the investigated person’s practice permit and registration” (HPA, Section 82 (1.1(a))) (emphasis added). Further, the HPA stipulates “A person whose practice permit and registration are cancelled as a result of a decision of unprofessional conduct based in whole or in part (a) on sexual abuse… may not apply for the practice permit to be reissued and the registration reinstated.” (HPA, Section 45(3 (a)).

Hopefully this article has cleared up some of the questions that arose from the June 11, 2019 webinar “Understanding Bill 21, An Act to Protect Patients.” If you have further questions, please get in touch with Physiotherapy Alberta’s Practice Advisor, Nancy Littke, at 780.702.5390 or nlittke@physiotherapyalberta.ca.

Other articles in this series: