Written by James J. Heelan Q.C., Barbara J. Stratton Q.C. and Natasha Birchall

On November 19, 2018, Bill 21: An Act to Protect Patients ("Bill 21") received Royal Assent.

Bill 21 sets out several changes to the Health Professions Act, including amendments regarding the discipline of inappropriate sexual abuse and sexual misconduct by regulated members. The Act will apply to the nearly 30 health regulatory colleges in Alberta, including the College of Physicians and Surgeons of Alberta, which governs physicians practising in Alberta. The Act will not apply to unregulated health care professions. As of April 1, 2019, where, for example, a physician's conduct warrants a finding of sexual abuse or sexual misconduct, strict consequences will be imposed.

Sexual abuse and sexual misconduct are distinguished:

• Sexual abuse includes threatened, attempted or actual conduct of a sexual nature, including sexual intercourse, touching and masturbation.
• Sexual misconduct includes objectionable or unwelcome conduct, behaviour or remarks of a sexual nature that the regulated member knows or ought reasonably to know will or would cause offence or humiliation to the patient or adversely affect the patient's health and well-being.

Under Bill 21, where there is a finding of unprofessional conduct by a physician based on sexual abuse, or a sexual offence, assault or disorderly conduct conviction under the Criminal Code, their practice permit and registration will be immediately and indefinitely cancelled.

For findings of sexual misconduct, disciplinary action ranges from suspension up to and including cancellation of a physician's permit for at least five years.

New reporting requirements include:

• if the College makes a finding of unprofessional conduct by a physician, the physician must report that decision to the registrar of any other college they are a regulated member of;
• if a governing body of a similar profession in another jurisdiction makes a finding of unprofessional conduct by a physician, the physician must report that decision to the registrar and the physician may be disciplined as if the misconduct had occurred within Alberta;
• if there is a finding of professional negligence by a physician, or a charge or conviction of an offence under the Criminal Code, the physician must self-report to the registrar; and
• if a physician has reasonable grounds to believe that the conduct of another regulated member constitutes sexual abuse or sexual misconduct, the physician must report that conduct to the complaints director.

These amendments to the legislation have also been made:

• an application for registration as a regulated member must include additional details of the individual's criminal record check, evidence of whether they are under investigation, information on prior unprofessional conduct, prior conditions on their practice and prior judgments in a civil action regarding their practice;
• in its annual report to the minister, the college must submit a statement respecting complaints made against a regulated member, including the number of complaints alleging sexual abuse or sexual misconduct and the number of findings of sexual abuse or sexual misconduct; and
• a copy of any decision or order detailing a physician's sexual abuse and sexual misconduct must be posted on the College's website, including information on suspension or cancellation of the physician's practice permit. This information will remain online indefinitely.

While the implications of a finding of sexual abuse or misconduct have always been strict, Bill 21 makes the impact far more significant and far-reaching. For example, a single inappropriate remark that embarrasses a patient or makes them uncomfortable could cause a suspension of the physician's permit. Physicians must govern themselves accordingly.