The Ministry of Health and Long Term Care has proposed three new regulations under the Regulated Health Professions Act, 1991 (RHPA”) – the piece of legislation that sets out the powers and process of the various health regulatory colleges in the province.

The Newly Proposed Regulations

The first proposed regulation provides criteria for determining whether an individual is a “patient” of a member of a health college.

The term “patient” is not defined in the RHPA, but legislative changes introduced in May 2017 contemplated that criteria would be created by way of regulation.  The Ministry is apparently now moving forward with that initiative.

The criteria proposed would include whether the member has charged or received payment for health care service provided to the individual, has contributed to a health record or file, has obtained consent from the individual to health care service, or has prescribed medication to the individual.

Why is This Important?

The definition “patient” is important because findings of sexual behaviour, remarks, touching or relations with a “patient” carry significant penalties for members – some mandatory.  While the need for such stiff penalties may seem obvious at first blush, issues can often arise in situations that catch members by surprise.

As previous blogs have explained, in the regulatory context, a “patient” cannot consent to sexual behaviour, touching or relations as a matter of law.  Therefore, even though a romantic or sexual relationship may appear to be between two consenting adults, if one is a “patient” of the other, the health professional has committed “sexual abuse of a patient”, as defined under the RHPA.

Even the treatment of a spouse can give rise to a finding of “sexual abuse of a patient”, as there is then a “concurrent” sexual and professional relationship.

Ending the professional relationship is not an easy answer, as most Colleges require a “cooling off” period before there can be any sexual relationship, and proposed amendments to the RHPA anticipated to come into force with these new regulations will define that the individual remains a “patient” for at least a year – as a matter of law.

The proposed regulation defining “patient” would provide an exception in cases of emergency.  As currently drafted, the regulation would provide that an individual is not a patient of a member if there is a sexual relationship between them; the health care service was provided in an “emergency situation”; and the health care professional (member) has taken reasonable steps to transfer care of the individual to another member or there is no reasonable opportunity to transfer care to another member.

At Wise Health Law, our team of knowledgeable health lawyers have significant experience providing legal guidance and representation to regulated health professionals. We have been assisting those in the healthcare field for more than 30 years. For the convenience of our clients, we have offices in both Toronto and Oakville, Ontario, and are easily accessible. Contact us online, or at 416-915-4234 for a consultation.

Please note that the information stated above is only current as of the date of publication, and legislation changes frequently.  This blog is no substitute for legal advice with respect to your particular situation.

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