November 19, 2010

On February 2, 2010 the Ontario Court of Appeal released its decision in Leering v. College of Chiropractors of Ontario[1] ("Leering"). Dr. Leering was a chiropractor who had his registration with the College of Chiropractors of Ontario (the "CCO") revoked by a panel of the CCO's Discipline Committee after the panel found him guilty of sexually abusing a patient. What is unique in the Leering case is that Dr. Leering and the patient had a personal relationship and were living together before Dr. Leering began giving her chiropractic treatments.

This bulletin will discuss some of the potential serious consequences this decision may have on regulated health professionals with respect to their mandatory reporting responsibilities.

Sexual Abuse Legislation

In December 1993, the Ontario Legislature introduced Bill 100 in order to amend the Regulated Health Professions Act, 1991[2] (the "RHPA"). The Bill included provisions that (i) prohibit sexual contact between health professionals and their patients; and (ii) impose mandatory reporting requirements.

Mandatory reporting was introduced in part as recognition that one of the consequences of sexual abuse by health practitioners is that patients are often too ashamed or too afraid to report the abuse.   Regulated health professionals are required to file a report with the appropriate regulatory college if they believe a patient has been sexually abused by another regulated health professional. Failure to do so may be considered to be professional misconduct. Additionally, contravening the mandatory reporting provisions of the RHPA can lead to fines of up to $25,000 for a first offence and up to $50,000 for second and subsequent offences.[3]

With the passage of Bill 100, the Legislature adopted a zero tolerance position with respect to the sexual abuse of patients by their regulated health professionals. The legislation did not include a general spousal exception even though many health professionals commonly treat their spouses.

Brief History of the Leering Decision

Discipline Panel

In December 2004 Dr. Leering met the complainant and began a personal relationship. In March 2005 they moved in together. Dr. Leering began providing chiropractic treatments to the complainant in April 2005. The complainant filed a complaint with the CCO concerning a billing issue that arose after both their personal and professional relationship ended. In investigating the financial complaint, the Complaints Committee of the CCO became aware of the sexual relationship between Dr. Leering and the complainant and referred Dr. Leering to the Discipline Committee. The Discipline Committee determined that the complainant was a patient and that the undisputed sexual relationship took place concurrently. The panel found Dr. Leering guilty of sexually abusing a patient and, in accordance with the legislation, revoked his registration.

Divisional Court

Dr. Leering appealed the decision to the Ontario Divisional Court and was successful in having the panel's decision overturned. The Court ruled that the Discipline Panel erred when it failed to consider that the sexual relationship arose from the spousal relationship not from the professional relationship. In the result, the Divisional Court found the panel's decision to revoke Dr. Leering's registration unreasonable.

Court of Appeal

The CCO appealed the decision of the Divisional Court. The Court of Appeal of Ontario overturned the Divisional Court's decision and re-instated the Discipline Panel's decision. The Court found that the disciplinary offence of sexual abuse will have occurred if there is a concurrence of a sexual relationship and a health care professional-patient relationship.[4]

Regulatory Colleges' Reactions to Leering

It is apparent from this decision there is not a blanket spousal exception. The Leering decision makes it clear that a panel of a discipline committee will have to decide if an individual is a patient and whether frank sexual activity occurred concurrent with being a patient. Leering has reduced the ability of discipline panels to look beyond the "concurrency" question and explore the nature of the relationship or the circumstances surrounding it.

After the Leering decision, the College of Dental Hygienists of Ontario (the "CDHO") published a special bulletin stating unequivocally that the treatment of spouses is unacceptable and if the CDHO received a mandatory report it could lead to a referral to discipline. The College of Opticians of Ontario announced to its members, via its website, that sexual abuse includes the treatment of spouses and could result in a referral to discipline. In its May/June 2010 edition of Dispatch Magazine, the Royal College of Dental Surgeons of Ontario (the "RCDSO") advised its members they should "…reconsider the wisdom of providing dental treatment to romantic partners and spouses…". The article goes on to explain that the court has left no room for interpretation when it comes to sexual relations between patients and practitioners. The RCDSO did not, however, prohibit its members from treating spouses or other "romantic partners" nor did it indicate that such treatment could lead to a referral to the Discipline Committee. The CPSO already has a policy that prohibits its members from treating spouses except in certain subscribed situations.[5] Other colleges have not enacted policies or practice advisories related to the treatment of spouses.

Simply put, the Court has said in Leering that any regulated health professional in Ontario who treats their spouse and has a sexual relationship with their spouse will be in violation of the sexual abuse provisions in the RHPA and may be at risk of a finding of professional misconduct for sexually abusing a patient. Regulated health professionals that work with them may be guilty of contravening the RHPA if they fail to file a mandatory report to the relevant college reporting that a health professional is treating his/her spouse.

For example, a nurse working in a family health team may have to file a mandatory report if she became aware that a dietician in that family health team is providing ongoing treatment to their spouse; an occupational therapist working in a therapy clinic may have to file a report if he became aware of a physiotherapist that was providing treatments to her spouse; an optometrist may have to report another optometrist that practices in the same clinic if he knew the other optometrist had given their own spouse an eye examination – the list goes on.

The law is clear that members have a positive obligation to report the sexual abuse of patients. The colleges do not have a positive obligation to seek out and prosecute those members that do not file a mandatory report. What is unclear is whether the colleges will interpret the decision in such a way that will require their members to file a mandatory report if a member is aware of another registered health professional providing treatment to their own spouse. While the RHPA sets out the requirements a college must follow when it receives a complaint, the RHPA does not set out what a college must do if it receives a mandatory report. We have been unable to find any Discipline or Court cases that have interpreted the mandatory reporting requirements. However, a strict reading of the Leering decision suggests that health professionals will be required to file a report with the relevant regulatory college in the event they became aware, during the course of their practice, of another health professional providing ongoing treatment to their own spouse. It follows that failure to do so could lead to a finding of professional misconduct and that the regulated health professional could be subject to the fines set out in the RHPA.

The decision did not change the law. How future discipline panels or courts will interpret this decision remains to be seen. For the moment, the decision stands and should be a reminder to regulated health professionals of their reporting responsibilities under the RHPA. The decision should signal the regulatory colleges that they need to give guidance to their members on this issue. Policies related to treating spouses and mandatory reporting obligations need to be put in place and communicated to their members.

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[1] Leering v. the College of Chiropractors, [2010] O.J. No. 406, 2010 ONCA 87

[2] S.O. 1991, c. 18.

[3] Health Professions Procedural Code, Schedule 2 to the RHPA at s. 93(2)

[4] The decision was not appealed to the Supreme Court of Canada

[5] CPSO Policy 7-06 Treating Self and Family Members available at: http://www.cpso.on.ca/policies/policies/default.aspx?ID=1856