An Ontario review board has ordered a new investigation into the complaint of a mother who says her seven-year old Indigenous daughter was subjected to a traumatic forced genital examination due to a physician’s unsubstantiated suspicions of sexual abuse – suspicions which the girl’s parents believe were motivated by racial bias.
In a decision released Sept. 18, Ontario’s Health Professionals Appeal and Review Board (HPARB) found the investigation by the College of Physicians and Surgeons (CPSO) into the complaint against Dr. Nicole Nitti to be inadequate, in part because the CPSO’s Inquiries, Complaints and Reports Committee failed to consider the family’s concerns about racial bias and discrimination.
“I have two reactions; I am optimistic, and I am reserved on the future of what this really means.” the girl’s mother said, adding she hopes a new investigation will be taken seriously.
She said the decision compels the CPSO to look at complaints of racial bias through a lens of systemic racial discrimination.
“I am feeling really good about the fact that there are some systemic impacts of this decision,” she said. “This could assist another Indigenous family or persons of colour in their own complaints in the future.”
For the child at the centre of the story, who is now 10, the decision made her “very happy.”
“It makes me feel kind of proud,” she said, “I am proud that I made something different in the world that is pretty hard to make different.”
The HPARB’s decision is subject to an anonymization order to protect the girl’s identity.
The case stems from a 2018 incident during which the family says the girl was subjected to a forced genital examination by Nitti after the girl attended with symptoms of a urinary tract infection (UTI) at a Muskoka Algonquin health centre.
They say they believe the physician was acting with racial bias when she quizzed the mother about domestic abuse and potential sex abuse.
The family alleges the doctor forced their child to submit to a genital examination despite a clear lack of consent.
The mother says they were unable to actively resist the exam out of fear the doctor would call Children’s Aid or the police and “their family would be pulled into systems that are notoriously discriminatory against and catastrophically harmful to Indigenous people.”
After the CPSO Inquiries, Complaints and Reports Committee declined to refer the complaint about Nitti to a formal hearing that could lead to discipline, the girl’s mother requested a review to be conducted by HPARB.
“I am very happy about how it was handled by the HPARB,” the mother said, “I felt like one of the board members, Emanuela Heyninck, was really listening to us. She seemed interested in hearing our side of the story and that was very validating.”
Lawyers for Nitti declined an interview request but sent an emailed statement.
“Dr. Nitti is unable to comment on specific patient care details due to her confidentiality obligation,” an email from lawyer Keary Grace said. “She does, however, support a robust review process regarding all aspects of patient care,”
According to the HPARB’s decision, Nitti believed she had consent for the exam and that it lasted ten seconds and revealed no sign of abuse.
The HPARB’s decision also noted that Nitti said in her written response to the complaint that regardless of race, “it is her consistent practice to examine the genital areas of children with complaints of painful urination to look for both irritation and any sign of sexual abuse,”
“She set out her training and self-reflection exercises undertaken because of her work with immigrant and refugee populations as the Physician Lead for Access Alliance Multicultural Health and Community Services in Toronto.”
Currently, Nitti’s LinkedIn profile lists her practice at High Park Health Centre and Access Alliance.
The HPARB’s decision also noted that Nitti acknowledged the impact of intergenerational trauma and day-to-day racism faced by Indigenous people and advised that she is participating in an 8 -hour online course to “self-reflect on her approach and practices.”
The CPSO also declined an interview but sent this statement admitting that systemic racism does exist in health care spaces.
“The CPSO respects this important decision released by the Health Professions Appeal and Review Board and will be undertaking a review of the case as directed,” said Josh McLarnon, spokesperson with the CPSO. “While we cannot comment on the specifics of a pending investigation the College is committed to ensuring we have a deeper perspective moving forward and can act appropriately on these matters and that includes listening to indigenous voices.
“We all have the right to feel safe and respected when navigating the health care system. Systemic racism does exist in our health care spaces and we are committed to doing our part in building a more informed and positive system.”
The girl’s father said he is very optimistic that the decision could represent real change for Indigenous people and their access to healthcare.
“When I try to teach people I always go through the story of how one pebble starts the bridge,” he said, “It can be a huge river but one little rock starts that bridge and eventually you are going to get across that.”
“I do believe that this is a step forward in this part of the process.” he said.
The girl’s mother said without lawyer Sarah Beamish’s help, they could not have navigated the complex review process. She has organized a GoFundMe to try and raise money to fund the ongoing legal work by Beamish, who is working largely pro bono.
“We need community,” she said, “Indigenous and non-Indigenous, this matters to everyone.”
Beamish emphasized that the HPARB decision does not mean the allegations against Nitti were proven, but that the CPSO must go back and reinvestigate the matter.
“It is an important step towards what this family is looking for,” said Beamish, who is working for the family largely pro bono, “The Board has recognized that the investigation was inadequate because [the CPSO] failed to centre the concerns about racism, and what the Board has said here is that if racism is present, that impacts healthcare.”
She said the decision can be cited by other Indigenous and racialized people to help them advocate for investigations that address the true nature of their complaints.
“The decision makes it clear that racial bias and discrimination are not always ‘common sense’ matters,” she said, “The Committee may need to seek and consider expert advice when investigating and deciding complaints of this nature, much as it might bring in expert advice on certain medical specialties,”
The decision also alludes to the fact that the CPSO investigators are not given any special training or guidelines for interviewing children, said Beamish.
“It raises very important questions about the capacity of the College to investigate cases involving children in a trauma- informed, reliable, ethical and effective manner,” she said. “This is a big gap in terms of its public protection mandate, and that is really highlighted in this case where we are dealing with a doctor who has admitted to routinely doing these genital exams on child patients in a practice that mainly serves refugee and migrant populations.”
Beamish said the mother has also brought an application to the Human Rights Tribunal of Ontario about the incident, but mediation with Dr. Nitti was unsuccessful.
“A full hearing proceeds after mediation,” she said, “That’s the usual process.”
The child’s mother said she was expecting the HPARB hearing to be potentially re-victimizing like the initial CPSO complaint process.
“It was an extreme contrast,” she said, “The College investigation and response felt to me very invalidating and denying the reality of racism in the complaint. It felt like they denied racism even existed.”