The unfortunate case of a dental hygienist who treated his spouse, and lost his license, has attracted recent media attention. Some of us have been battling for years against what I believe to be an unintended consequence of the language of the Regulated Health Professions Act (“RHPA”). Progress has been made, but not enough soon enough.
The Legislative Language
The problem is the broad wording of the RHPA, which defines “sexual abuse of a patient” as sexual conduct between a patient and a health professional. While that may sound like a reasonable – indeed laudable – definition in the pursuit of eliminating abusive or predatory conduct on the part of a health professional, the language has been interpreted by the courts as allowing for no flexibility or consideration of context. If there is a treating relationship “concurrent” with a sexual relationship, then “sexual abuse of a patient” has occurred.
The courts have also been clear that patients cannot, as a matter of law, consent to sexual conduct with a health professional – again, regardless of context.
The result of this combination of legal principles is that if health professionals treat their spouses, they are by definition committing “sexual abuse of a patient”.
To make matters worse, if the “sexual abuse” involves particular acts of frank sexual conduct (including for example intercourse), then the Discipline Committee of the College has no choice but to revoke the health professional’s license for 5 years.
Limited Autonomy For Colleges to Grant Exemptions
In 2013, after review by the Health Professions Regulatory Advisory Council, the legislation was amended to allow each Health College to create an exemption for “spouses”. Essentially, the exemption would provide that if the “patient” at issue was a “spouse”, then the conduct was not “sexual abuse of a patient”.
However, each College could only create the exemption by “regulation”. A “regulation” requires not only approval by the respective College, but then also by the Ontario government in order to come into force. Since the amendment in 2013, a number of Colleges have submitted proposed regulations to the Ontario government, but very few regulations have been “approved” by the government. The ongoing delay is puzzling because the legislation is very clear about what the regulation should say, and so the regulations proposed are largely identical. The regulations have been pending for years, so this unexplained delay does not seem to have any particular political stripe.
The irony, then, is that Colleges are currently prosecuting members for “sexual abuse” when they have merely treated their spouses, while the College may have already also approved a regulation that would provide an exemption.
Overbreadth of Legislation
There may well be reasons why certain Colleges do not want their members treating spouses. However, the RHPA covers a wide range of health professions. The risks possibly posed by a physician or psychotherapist treating a spouse may be very different than those of a hygienist or chiropodist – yet they are all treated the same.
Moreover, if a College wants to prohibit the treatment of spouses or family for other reasons (e.g., conflict of interest or other concerns), they should identify the reason and prohibit treatment on that basis. If a College or the insurance industry wants to prohibit or restrict the treatment of spouses to minimize the risk of insurance fraud, deal with the issue on the basis of that rationale.
To continue to label this conduct as “sexual abuse of a patient” is not only enormously destructive to members and their families, but it trivializes the experiences of real victims of actual “sexual abuse”.
The court in the recent case characterized these facts as an “anomaly”; however, they are not. We have represented many clients faced with similar fact patterns. Sometimes, the situation is reported by an insurer; sometimes by a disgruntled former employee. Rarely is the spouse the one complaining. Indeed, the impact on the spouse can be devastating, as the health professional is forbidden to practice for 5 years, with an obviously negative impact on the household income. It can also interfere with the health professional’s ability to volunteer with their children’s school or sports activities, not to mention the public shame resulting from being branded someone who has “sexually abused” a patient.
The state of the law in this area continues to pose a significant risk to health professionals and their families. We hope you never need us; but if you do, we’re here. At Wise Health Law, we rely on our significant experience before discipline panels of various regulatory Colleges to provide our clients with exceptional guidance and representation through this often-overwhelming process. To find out more about how we can help, contact us online, or at 416-915-4234 for a consultation.