On June 26, 2017, Elizabeth Wettlaufer was sentenced to eight terms of life in prison for eight counts of first-degree murder. She was also sentenced to ten years for four counts of attempted murder and seven years for two counts of aggravated assault. All charges will be served concurrently.[1] The murder victims, ages 75 to 96, were residents at long-term care (LTC) facilities in London and Woodstock, Ontario, where Wettlaufer worked as a registered nurse.[2] She is eligible for parole in 25 years, though Justice Bruce Thomas described her as a “shadow of death” in his sentencing decision and wrote, “I don’t think she should ever get the possibility of parole, ever. I think she should spend the rest of her life in a small box contemplating what she’s done.”[3] The College of Nurses of Ontario (CNO) has since, unsurprisingly, found Wettlaufer guilty of professional misconduct and revoked her certificate of registration.[4]

Wettlaufer committed seven of the eight murders at an LTC facility in Woodstock between 2007 and 2014 by injecting her patients with lethal doses of insulin. She was fired from that facility in 2014 for repeated medication-related errors. The facility reported the termination to the CNO as required, however, the CNO took no immediate disciplinary action and made no notation on Wettlaufer’s registration status.[5] Wettlaufer found another position at an LTC facility in London within a month of her termination, where she killed her eighth victim.[6] Wettlaufer’s crimes, and the policy and legislative frameworks in which she committed them, are now the subject of an inquiry led by Ontario Justice Eileen Gileese. Wettlaufer’s case calls into question, among other things, the role and efficacy of public registers for health professionals, and raises the question of how to best balance public transparency and health professionals’ privacy.

The purpose of public registers, such as those of the CNO and the College of Physicians and Surgeons of Ontario (CPSO), is to allow the public to view members’ registration status, qualifications, and any restrictions or conditions on their status. Registers allow the public to make informed decisions about the people in whom we place a great amount of trust, our health care providers. This trust is particularly important in the context of caring for vulnerable persons, including children, those with mental and/or physical disabilities, and the elderly.

What is disclosed in public registers? In addition to professional misconduct, incompetence and/or incapacity as determined by the Discipline Committee and the Fitness to Practice Committee, the CPSO register lists a summary of allegations relating to professional misconduct, incompetence and/or incapacity awaiting hearing from their respective committees.[7] In 2015, the CPSO approved new by-laws that increased the scope and depth of information on its register in response to calls for heightened transparency. As a result of the CPSO’s Transparency Initiative, a range of additional information, such as criminal charges, convictions, and bail conditions are now also posted on its register.[8] Similarly, the CNO’s public register includes all charges that are “considered relevant to the nurse’s practice”.[9] These changes have given rise to concerns that regulatory bodies have compromised the privacy of health professionals in the name of transparency. This is particularly significant with respect to the reporting of criminal charges.

While criminal charges are public information, their inclusion in registers brings attention to the charges that they are otherwise unlikely to receive. To place this in context, public registers list criminal charges before health professionals have been tried and while they continue to enjoy the presumption of innocence guaranteed by the Charter of Rights and Freedoms.

Further compounding the issue is the long wait time for criminal trials. The Supreme Court of Canada ruling in R. v. Jordan[10] last summer set out new guidelines for what is considered an unreasonable delay while awaiting trial, and has left the government scrambling to find resources to shorten wait times. Additionally, the complexities of a criminal case involving doctor-patient care, for example, will likely exacerbate delays, leaving criminal charges pending on public registers for years at a time, which results in a high potential for prejudice and misuse of information by the public.

One of the CPSO’s transparency principles is that, “In order for information to be helpful to the public, it must… include context and explanation… Context is extremely important. Limited information or information without explanation is potentially unhelpful and could be misleading.”[11] Context, though, is difficult to provide to a patient looking at criminal charges on a register, and looking for perfection from their physician or nurse. The CPSO register includes the “fact and content” of criminal charges,[12] however, a patient may not understand the complexities of the criminal justice system or the regulatory system of a college including bail, warnings, and cautions. How do we aptly explain peace bonds to a patient as an asterisk to a criminal charge on a register, and are they even willing to listen at that point?

Nevertheless, the need for transparency and accountability is critical.  One possibility is to allow access to information only to prospective employers, rather than the general public. This option does not wholly eliminate the potential for prejudice but ideally limits the scope of access to health professionals’ history to those with the knowledge and experience to view it in the proper context. Employers can then make decisions that assist in protecting the public. In Elizabeth Wettlaufer’s case, employers may have been able to identify early warning signs and take action, such as banning her from administering medication until she was retrained or double-checking the medication in stock.

Admittedly, the issue allows for no easy solutions. There are examples where we – as patients – may wish to know the history of our health professionals regardless of whether our assessment is accurate or fair. Prioritizing transparency is reflected in the Ontario government’s recent passage of Bill 87, Protecting Patients Act, 2017. Among other things, the bill emphasizes public access to current and past conduct of health professionals and expands the list of acts of sexual abuse that will result in the mandatory revocation of a health professional’s license.[13] Of course, if a physician has been charged with sexual assault multiple times over their career, it is difficult to argue against full disclosure to the public, even if those charges did not result in a conviction. Patients would want that information and it would be difficult to argue that they are not entitled to it. The argument may differ, however, in the case of a physician who struggled with a drug addiction or mental illness, had their certificate revoked, sought help, and then had their certificate reinstated.

Overall, the critical need to balance privacy and transparency is easily matched by the complexity of the task, amply justifying the need for further examination in the upcoming inquiry. While public safety is paramount, a balance between privacy and transparency that respects the public’s right to know and the presumption of innocence should not be overlooked.

About the author

Sarah Berhane is  a lawyer with Wardle Daley Bernstein Bieber LLP