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Medical Professionals (RHPA) - Dental Hygienists - Cases. Tanase v. College of Dental Hygienists of Ontario
In Tanase v. College of Dental Hygienists of Ontario (Ont CA, 2021) the Court of Appeal confirmed prior case law on when 'sexual abuse' occurs within the meaning of the Health Professions Procedural Code:[1] Ontario has a “zero-tolerance” policy for sexual abuse by members of the regulated health professions in Ontario. Members are guilty of professional misconduct under s. 51(1) of the Health Professions Procedural Code (the “Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, if they commit “sexual abuse” against a patient, which is defined in s. 1(3) as including “sexual intercourse or other forms of physical sexual relations between the member and the patient”.
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Leering remains good law
[24] Leering involved a chiropractor who was living with the complainant in a conjugal relationship when he began treating her as a patient. He treated her 28 times during the course of their relationship, which lasted for under 12 months, and billed her for the treatments. A dispute over fees owing at the end of the relationship led to a complaint to the College, which determined that the chiropractor should be charged with sexual abuse. The Discipline Committee of the College of Chiropractors found the chiropractor guilty of sexual abuse and imposed the mandatory penalty of revocation of registration. The Divisional Court reversed the decision on appeal, holding that the Discipline Committee was required to inquire into whether the sexual relationship arose out of a spousal or professional relationship in order to determine whether there was sexual abuse.
[25] The Court of Appeal held that the Divisional Court erred by imposing an obligation on the Discipline Committee to inquire into the nature of the parties’ sexual relationship. As Feldman J.A. explained, at para. 37:The disciplinary offence of sexual abuse is defined in the Code for the purpose of these proceedings as the concurrence of a sexual relationship and a healthcare professional-patient relationship. There is no further inquiry once those two factual determinations have been made.[1] [26] The appellant argues that the Legislature “overruled” Leering by amending the Code in 2013 to authorize individual colleges to enact regulations permitting practitioners to treat their spouses. Although the spousal exception regulation for dental hygienists was not in place when treatment in this case took place, the appellant says that the Legislature’s “clear rebuke” of Leering means that the decision ought to be revisited in order to give the Discipline Committee the discretionary authority to determine whether treatment of a spouse involves actual sexual abuse. “On any reasonable view”, the appellant asserts, “the concerns about exploitation of a power dynamic or the inducement of consent simply do not arise where the professional and patient are in a pre-existing spousal relationship”. Moreover, the appellant argues, the mandatory revocation provisions “were never intended to apply to a member who, on a limited basis, treats his or her spouse or romantic partner where the romantic relationship preceded any treatment rendered.”
[27] This argument must be rejected. In essence, it invites the court to convert the bright-line rule prohibiting sexual relationships into a standard requiring the nature and quality of sexual relationships between practitioners and patients to be evaluated to determine whether discipline is warranted in particular circumstances. It finds no support in the language of the Code and would frustrate its clear purpose. Moreover, it begs the question by assuming that no concerns arise in the context of pre-existing sexual relationships, regardless of the nature or duration of those relationships.
[28] The Code is clear when it comes to sexual relationships. It is neither ambiguous nor vague. Professional misconduct is established once sex occurs between a member of a regulated health profession and a patient. That the misconduct is termed “sexual abuse” neither mandates nor permits an inquiry as to the nature of a sexual relationship. The Legislature did not prohibit only sexual relationships that are abusive, leaving it to disciplinary proceedings to determine what constitutes abuse; it prohibited sexual relationships between regulated health practitioners and their patients per se. This approach obviates the need for discipline committees – bodies composed of health care professionals and laypeople – to inquire into the nature of sexual relationships and whether, as the appellant would have it, they give rise to “actual sexual abuse” because they arise out of coercion or exploitation. Justice Feldman’s observation in Leering, at para. 41, remains apt:The discipline committee of the College has expertise in professional conduct matters as they relate to chiropractic practice. Their expertise is not in spousal relations or dynamics, nor would it be fruitful, productive or relevant to the standards of the profession for the committee to investigate the intricacies of the sexual and emotional relationship between the professional and the complainant. That is why the Code has defined the offence in such a way that the fact of a sexual relationship and the fact of a doctor-patient relationship are what must be established. [29] The purpose of the rule-based approach established by the Code is to avoid any doubt or uncertainty by establishing a clear prohibition that is easy to understand and easy to follow. Sexual relationships with patients are forbidden and members of the regulated health professions must govern themselves accordingly, regardless of whether the rule seems harsh or unfair in their personal circumstances.
[30] Rules may be subject to exceptions, of course, but the Legislature’s decision to amend the Code to permit colleges to establish a spousal treatment exception cannot be taken to have overruled Leering. On the contrary, it acknowledged the decision while permitting individual colleges to mitigate the strictures of the rule by adopting a narrow and specific exception if they consider it appropriate to do so. And while that exception has since been adopted by the College of Dental Hygienists, it came into effect only after the appellant provided the treatment that gave rise to the finding of misconduct in this case. The appellant was required to comply with the rule prohibiting sexual relationships with patients at all relevant times – even after he and S.M. married.
[31] That said, it is important to clear up a misconception that underlies the decisions of both the Committee and the Divisional Court, as well as the appellant’s submissions, all of which use the term “spouse” without regard to its definition in s. 1(6) of the Code.
[32] As I have said, that definition is narrow and specific. It requires either (i) marriage or (ii) cohabitation in a conjugal relationship for a minimum period of three years. In other words, the exception applies only to sexual relationships of some permanence. Even if the exception had been in effect when he treated S.M. during their cohabitation in a conjugal relationship prior to their marriage, the appellant would have been in violation of the rule because that relationship had not run for the required three-year period.
[33] The appellant’s marriage to S.M. does not have retrospective effect, nor does it operate to render the definition of spouse irrelevant in the application of the exception. Treatment cannot be given to sexual partners outside the context of a spousal relationship, as defined by the Code, regardless of whether marriage occurs subsequently.
[34] In summary, the decision of this court in Leering remains good law. The Committee’s decision that the appellant’s actions violated the Code is correct. Even if it had been in force at the relevant time, the spousal exception would not have operated to excuse the appellant’s pre-marital treatment of S.M. after they began their sexual relationship. And because it was not in force, the spousal exception did not excuse the appellant’s post-marital conduct either.
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