AD-S v NMN, 2020 CanLII 67103 (ON HPARB)

The Health Professions Appeal and Review Board of Ontario ordered the College of Physicians and Surgeons of Ontario Committee to conduct a further and adequate investigation into a complaint in which racial bias and profiling against a First Nations patient and her parents was alleged. The Committee overseeing complaints failed to recognize systemic anti-Indigenous bias in the health care system and the potential for conscious or unconscious racial/cultural bias and its existence in the medical setting, which is the appropriate lens for analysis of this complaint. 

Indigenous Law Centre CaseWatch Blog

The Applicants took their seven-year old daughter to the Huntsville District Memorial Hospital Emergency Department where the triage nurse recorded complaints of pain upon voiding, lower abdomen pain, legs hurting, no fever or nausea. An active diagnosis of a suspected urinary tract infection [“UTI”] was made.

The Respondent assessed and examined the patient in the presence of her mother. The Applicants complaint had a number of concerns including that the Respondent did not acknowledge the patient’s parent or introduce herself, did domestic violence and sexual abuse screening in a high traffic area and ignored three requests to check the patient’s urine for a UTI before deciding on a vaginal examination. The patient was not provided a gown or blanket before being asked her to remove her clothing and the door was shut on the patient’s father. The Respondent raised her voice at both Applicants in front of their child and chose the most intrusive examination first, prior to checking urine for UTI among other issues.

In her response, the Respondent explained it is best practice to complete a history and physical before ordering tests to inform what investigations are necessary. Although triage nurses often order tests to speed up the process, a proper assessment by the physician is required. The Respondent stated that had she not done the vaginal exam and treated only the urine infection, she would have missed the yeast infection and irritation in the patient’s perineum which also needed to be treated. The Respondent addressed the Applicants’ allegations of racial discrimination by stating that regardless of race, it is her consistent practice to examine the genital areas of children with complaints of painful urination to look both for irritation and any sign of sexual abuse.

The Committee investigated the complaint and decided to accept a remedial agreement from the Respondent. In the remedial agreement, the Respondent acknowledges the need for education in reviewing guidelines for a paediatric genital examination, which would include gowning, and also in reviewing treatment of UTI in children, including the need for urine culture screening. The Committee stated its expectation that physicians communicate appropriately and sensitively with patients and their families, including those of a culture other than one’s own.

The Applicants now request that the Board review the Committee’s decision. Pursuant to section 33(1) of the Health Professions Procedural Code, the mandate of the Board in a complaint review is to consider either the adequacy of the Committee’s investigation, the reasonableness of its decision, or both. In conducting a complaint review, the Board assesses the adequacy of an investigation and reasonableness of a Committee decision in reference to its role and dispositions available to it when investigating and then assessing a complaint filed about a member’s conduct and actions.

The key issue for the Board was to determine whether the Committee was alive to the issue of discrimination as articulated by the Applicants so as to render their investigation adequate. Had the Committee framed its analysis by recognizing at the outset the potential for conscious or unconscious racial/cultural bias and its existence in the medical setting, the Committee would have demonstrated that it was alive to the Applicants’ essential complaint and would have provided the appropriate lens for the Committee’s analysis of the Respondent’s treatment of the child and the manner in which she chose to interact with the parents.

The Board found that, in not properly framing the true nature of the Applicants’ complaint, the Committee’s investigation is inadequate and should be re-investigated by the same or by another Committee who may come to a different conclusion on some or all of the aspects of the Applicants’ concerns. The Board returns this matter to the Committee for re-investigation. The Board requires the Committee to recognize the potential for racial/cultural bias at the outset and to analyze the Applicants’ allegations with this lens. If it considers it necessary, as well to obtain expert advice to assist it in understanding how cultural/racial bias may affect a physician’s conduct and actions, whether conscious or unconscious.


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