Should the fight against sexual abuse by health professionals include punishing a dental hygienist for treating his wife? In Ontario, up until October 2020, the answer was yes. Fortunately, change is coming.
The case of Alexandru Tanase, stripped of his license and labelled a sexual abuser because he had treated his wife, attracted a lot of media attention last year. Some of us were not surprised, since we had been fighting for years against this seemingly unintended consequence of the Regulated Health Professions Act (RHPA) in Ontario.
At long last, we seem to be moving in the right direction. A regulation allowing hygienists to treat their spouses was approved in early October 2020. Similar regulations for denturists, chiropractors, and kinesiologists have now been posted by the Ministry for comment. Hopefully, those regulations will also be approved by the end of this year or early next.
How we got here
The RHPA defines “sexual abuse of a patient” as sexual conduct between a patient and a health professional. When trying to eliminate abusive or predatory sexual conduct on the part of health professionals, this definition sounds eminently reasonable. However, in interpreting the provision, courts have allowed 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 made it clear that a patient’s consent is irrelevant, as a matter of law, regardless of context. As a result of this strict interpretation, health professionals cannot treat their spouses without committing sexual abuse of a patient.
Even worse, if the relationship between a health professional and their spouse includes acts of frank sexual conduct, for instance intercourse, the Discipline Committee of the College has no choice but to revoke the professional’s license for a minimum of five years.
Towards reform
In 2013, after review by the Health Professions Regulatory Advisory Council, the RHPA 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” (as defined), then a concurrent sexual and treating relationship would not be “sexual abuse”.
However, each College could only create the exemption by regulation, requiring not only approval by the College but also by the Ontario government. Since the amendment in 2013, a number of Colleges have submitted proposed regulations to the Ontario government, but very few of them have been approved. The delay is puzzling because the legislation is very clear about what the regulation should say, and so the regulations proposed are largely identical in their wording.
Colleges are prosecuting for “sexual abuse”
In the meantime, Health Colleges in Ontario are prosecuting members who have treated spouses for “sexual abuse”, while those Colleges’ proposed regulations await government approval.
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.
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, not label it “sexual abuse”.
To continue to label the treatment of a health professional’s spouse as sexual abuse of a patient is not only enormously destructive to members and their families, but it trivializes the experiences of sexual abuse survivors.
The court in the Tanase case characterized these facts as an “anomaly”. 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 person lodging a complaint. Indeed, the impact on the spouse can be devastating, as the health professional is forbidden to practice for at least five 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 a sexual abuser.
Change on the horizon
In addition to the new regulations now posted by the Ministry, the Tanase case will be heard by a five-member panel of the Ontario Court of Appeal some time in 2021 (indicating the court may be willing to reconsider previous caselaw). It appears that, finally, welcome change is on the horizon for many health professionals across the province.
Valerie Wise, of Wise Health Law, has dedicated most of her practice to health law since 1995, and has done it exclusively since 2005.