Case Study on Addressing Anti-Indigenous Racism

As noted in the August issue of Grey Areas, many regulators are still in the early stages of learning how to engage with anti-Indigenous racism. In that article we describe some of the groundbreaking work done by the health regulators in British Columbia, with a special focus on the nursing and midwifery, physician, and pharmacy regulators.  A case study about that learning can be found in two Ontario Health Professions Appeal and Review Board (Board) decisions relating to the handling of a complaint against a physician providing emergency care.

A seven-year-old girl presented with pain on urination. Her parents, both Indigenous, anticipated care would be focused on a possible urinary tract infection. They were concerned that the physician pursued screening for sexual abuse and pressed for an insensitive examination of the patient’s genital area without genuine consent. The family indicated that they went along with the examination for fear of otherwise being drawn into child protective processes, which has had tragic consequences within their community. They also expressed concern about the physician’s rude manner and lack of concern for their privacy. They believed racial profiling influenced the physician’s actions.

The screening committee accepted a remedial agreement from the physician that addressed processes for paediatric genital examinations and treatment of urinary tract infections in children. The committee also stated expectations about sensitive communications including for families from a different culture than that of the physician.

The family sought a review before the Board: A.D-S v N.M.N., 2020 CanLII 67103 (ON HPARB). The Board returned the matter for further investigation on the basis that the screening committee had not addressed the fundamental aspect of the complaint:

The Board finds that, in not properly framing the true nature of the Applicants’ complaint, the Committee’s investigation is inadequate and should be re-investigated …. Where the complaint is founded on allegations of racial/cultural bias, the Committee has an obligation to assess a member’s conduct and actions through that lens and to obtain such further information as may be necessary to assist it in understanding how cultural/racial bias may affect a physician’s conduct and actions, whether conscious or unconscious.

Of interest was the discussion that the physician’s experience in care for immigrant and refugee groups in Toronto was not an adequate substitute for understanding the specific experience of Indigenous peoples in Canada.

The screening committee rendered a second decision which provided specific advice to the physician, including the following:

  1. [to] approach clinical encounters with an awareness of the impact of unconscious bias and to apply a trauma-informed lens that recognizes the deep and wide-ranging experience and effect of anti-Indigenous racism within the health care system;
  2. [to] move a conversation with a patient’s family to a more secure and private area once a discussion turns to concerns about possible abuse, recognizing this is particularly important for Indigenous families given the historical and ongoing inter-generational trauma in Indigenous communities related to separation of children from their families;….

The family sought a second review before the Board: AD-S v Nitti, 2023 CanLII 65769 (ON HPARB).

In finding the decision of the screening committee to be reasonable, the Board made the following points:

  • The screening committee had obtained additional information about the education of the physician on addressing anti-Indigenous racism.
  • The screening committee had also obtained additional information about education and resources within the regulator and its recent guidance to the profession on addressing anti-Indigenous racism.
  • The screening committee expressly addressed in their reasons awareness of the possibility of anti-Indigenous racism affecting the thinking of both the physician and of the committee in considering the complaint. On this point, the Board stated:

The Committee at the outset noted that the Applicants had raised questions about the efficiency of training for the Committee around anti-Indigenous bias and racism in the healthcare system as well as whether the College’s EDI lead necessarily had the Indigenous-specific knowledge applicable to the situation. The Committee noted that it had received important and relevant training in the two years since this matter was previously considered and had benefited from the extensive experience of the EDI lead as well as EDI resources, and the specific area of anti-Indigenous bias and racism in the healthcare system.

  • The screening committee provided detailed reasons that addressed each of the concerns identified by the family.

The Board concluded that the screening committee’s decision was reasonable.

This case study assists in understanding how professions and regulators can continue to improve their awareness and performance in this area.

More Posts

Read the Fine Print

Courts are increasingly interpreting regulatory legislation with its public interest purpose and intent in mind. However, the language of the provisions still matters, as was

The Residual Category

In discipline matters, abuse of process claims are generally premised on excessive delay and require prejudice to the registrant to result in a stay of

Scrutinizing Sanctions

Discipline panels often must decide how to consider a registrant’s medical conditions or personal stress when imposing a sanction. Alberta’s highest court provided guidance on

Doré Applied

Regulators are required to respond proportionately when their public protection mandate involves imposing consequences on a registrant’s expression: Doré v. Barreau du Québec, 2012 SCC