Tuesday, October 05, 2010

Ontario Canada bans health providers from treating spouses or partners

Ontario Court of Appeal decision says ZERO TOLERANCE RULE bans health providers from treating spouses or partners.

The College is advising members, on a go forward basis, to reconsider the wisdom of providing dental treatment to romantic partners and spouses, as a result of an Ontario Court of Appeal decision in February. While the College received a letter in 1995 from the Minister of Health permitting treatment of spouses, that landscape appears to have changed.

The appeal court unanimously ruled that even if a regulated health care provider’s sexual relationship with a partner predated their professional relationship, that provider has committed sexual abuse and risks losing his or her licence for at least five years, if a complaint is filed and there is a referral of specified allegations of professional misconduct to the Discipline Committee.
The court’s decision applies to 26 health professions and the more than 256,000 health care providers in Ontario governed by the Regulated Health Professions Act (RHPA), including dentists.

The zero tolerance rule in the Health Professions Procedural Code,
32 DISPATCH • May/June 2010 Ensuring Continued Trust ZERO TOLERANCE RULE
which is part of the RHPA, stipulates that a health care professional governed by the RHPA who has “sexual intercourse” with a “patient” shall have his/her license revoked for a minimum of five years, if there is a finding by the Discipline Committee following a complaint or an investigation.

According to the appeal court’s judgment, the Code’s provisions do not exempt the health care practitioner from either liability for sexual abuse or from the mandatory penalty, where the health care professional and the patient are having sexual intercourse in the context of a relationship as spouses or a spousal-type relationship.
There is no room for interpretation. The appeal judges went on to state that “when it comes to sexual relations between a doctor and a patient, there is a black letter, bright line prohibition with a drastic sanction and no exceptions or exemptions. The zero tolerance policy precludes inquiry into any explanation or excuse for the sexual activity. A patient’s consent is irrelevant.”

The appeal court recognized that it “may appear that the strict and significant mandatory penalty that follows from a conviction for professional misconduct by
sexual abuse is harsh and arguably unjust in cases where there is a consensual sexual relationship and no exploitation by the health care professional. However, the panel found that the importance of upholding the zero tolerance policy outweighs its pitfalls because the legislation is there to address a growing problem of sexual abuse of patients by some health care professionals.”

The court made a minor exception for what it calls “incidental” care, which covers off situations of emergency care. The court said “it would be unreasonable for a spouse to be denied treatment in such circumstances.”

The court said that if the government wished to provide exceptions it would have done so when it amended the Regulated Health Professions Act in June 2009. The fact that it did not means that it is the law of the land.

This matter arose out of a decision at another College, the College of Chiropractors of Ontario. The issue arises only when there is a formal complaint or formal information leading to an investigation conducted by
the College.

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