More Insanity

by Randy Lang, DDS, D.Ortho

Last year in an editorial entitled “The Law is an Ass”, I reported the story of two health professionals, a male physician and a female physiotherapist, both of whom practiced in Ontario, and who also happened to be patients of each other. Over many years of knowing each other, both socially and professionally, they fell in love and had an intimate affair that lasted three years.

Unfortunately, when the affair ended, the physiotherapist filed a complaint against her physician lover with the College of Physicians and Surgeons of Ontario. The physician was sent to the Discipline Committee and charged with professional misconduct and sexual abuse for having sex with his patient, the physiotherapist. Even though they were two equal, sophisticated, consenting health professionals, the College, following the law according to the Health Professions Procedural Code, revoked the physician’s licence to practice medicine for five years.

And what if, I asked, this physician had instead been a single female dentist who was asked out by a charming male patient, and their relationship over time became intimate? Could she also lose her licence if the nice gentleman filed a complaint of sexual abuse against her? Or, even more ridiculous, what if this physician had instead been a young female optician and she accepted a date from one of her older male clients. And what if, between eye appointments, their relationship evolved into a consensual sexual relationship, could this optician also lose her career if her gentleman friend filed a complaint against her alleging sexual abuse for sleeping with him?

Sadly, I reported, the answer to both of these questions was yes. Under Ontario’s zero tolerance law for all health professionals –which is acknowledged as the most inflexible and toughest in the world — both the female dentist and the female optician would be subject to mandatory revocation of their licences for sexual abuse of a patient. The Health Professions Procedural Code clearly states that members of all 21 regulated health professions in Ontario, including physicians, nurses, opticians, physiotherapists, dentists, midwives, dental hygienists and even denturists, who engage in intimate relationships with a person treated by them, automatically lose their licence for a minimum of five years.

Although I had used the hypothetical examples of a female dentist and a female optician being subject to a charge of sexual abuse to show the absurdity of the legislation, I never dreamed anything so ridiculous could ever happen. Well guess what? It just did!

The College of Dental Hygienists of Ontario (CDHO), has just revoked the licence of one of its hygienists for five years and published her name nine times in the May 2005 CDHO Newsletter for all the world to see. Her crime was that, when she was working under contract for the Canadian Armed Forces at a dental clinic in Ontario, she accepted a date with one of the officers, a Captain. He also happened to be one of her patients. When she told him that, if she was going to date him, it would be best if he switched to another hygienist for his cleaning, his reply was that since she was the only dental hygienist working in the clinic, he naturally had to go to her. And, if he switched to another hygienist in private practice, he would have to pay for it out of his own pocket, and he was not prepared to do that. He then told her, “Don’t worry, its not an issue.”

They subsequently fell in love, got married and had a little girl. Unfortunately, after five years of marriage, the couple decided to divorce. The husband was not happy with the terms of the divorce settlement, so he filed a complaint with the CDHO alleging professional misconduct and sexual abuse by his hygienist wife because their courtship became intimate during the period of time she was cleaning his teeth in the clinic.

Even though they had been married for five years and had a child, and even though a 6’2,” 200-lb Armed Forces Captain claiming a 5’5,” 115-lb hygienist sexually abused him is absurd, and even though the motive for the complaint was pure and simple vengeance, and even though the hygienist didn’t even have a lawyer to represent her at her hearing, the Dental Hygiene College, following the law according to the Health Professions Procedural Code, stated it had no choice but to revoke the hygienist’s licence for five years. This translated to a loss of over $250,000 in her future income and probably her career as a hygienist.

The sad thing is, this case didn’t have to end this way. There was a perfectly legal way out. The CDHO could easily have said that the purpose of the legislation was to protect patients from predatory conduct by a health practitioner, where a power imbalance existed between the practitioner and the patient. Since there was no predatory conduct and no power imbalance in this case, the College could have said there was no professional misconduct and therefore declined to refer it to their discipline committee. Similarly, the discipline committee could have determined that this case arose out of a matrimonial dispute, and had nothing to do with the intention of the legislation, and therefore there was no professional misconduct. Unfortunately, they chose not to do this.

I find it ironic that the lawyer who was hired by the CDHO to successfully prosecute the dental hygienist for sexual abuse and revoke her licence, is also a member of the Canadian Bar Association. At the recent annual meeting of the Canadian Bar Association, delegates overwhelmingly rejected a proposed ban on lawyers having intimate relationships with clients. One delegate, echoing a famous comment by Pierre Trudeau, said, “The Canadian Bar Association and the law societies of this country have no place in the bedrooms of its lawyers.” Another asked, “Who are we to impose a prohibition on falling in love?”

So what can be done to prevent more dentists and hygienists from unfairly losing their licences, just as the unfortunate hygienist just lost hers? That’s easy–our professional associations must lobby the provincial government to immediately modify the mandatory five year licence revocation provision law before more nice people are unjustly hurt and more careers are destroyed. And here are a few good reasons why.

* The mandatory revocation provision is far too extreme and goes way overboard. The recent case involving the hygienist is a case in point. Here we have a situation in which an intimate relationship that commenced years ago during a brief treatment relationship, was genuinely consensual and resulted in long-term committed marriage. Requiring mandatory revocation in such situations is absolutely ridiculous and not necessary to accomplish the government’s original objective of eradicating true instances of sexual abuse involving physicians.

* The mandatory revocation provision removes all discretionary powers of the Discipline Committee to consider the circumstances in each case and determine fair and realistic penalties. No Discipline Committee in all the land would have revoked the licence of the unfortunate hygienist if it had been allowed to fairly assess all facts and give fair justice. Unfortunately, when a Discipline Committee’s only tool is a sledge hammer, then every case before it will look like a nail waiting to be bashed.

And what, you might ask, if this draconian law is not changed? I will give you two scary scenarios that could adversely affect a large number of dentists and hygienists in this province in a big financial way.

* Let’s suppose you are a happily married dentist or hygienist, and years ago during your intimate courtship, your spouse was also your patient, even for just a few fillings or cleanings. You now have a huge lifelong financial exposure hanging over your head that will never go away. You could lose your licence to practice for five years with just one little letter of complaint and a 50-cent stamp.

* Or, let’s suppose you
and your spouse of 10 years were intimate during your courtship years ago, and during this period your spouse also continued to be your patient. And let’s suppose you have now decided to divorce, and the settlement negotiations are not going well (they never do). Well, get ready to receive the following shot fired across your bow: “You better remember we were sleeping together when I was still your patient. So, if I don’t get the house, the cottage, the car, the kids and $15,000 a month, I will charge you with sexual abuse and you can kiss your practice and fine reputation good-bye. However, you can keep the dog and hampster, dear.”

I have five classmates who are happily married to previous patients. And I can think of half a dozen other dental colleagues — two of them female, and two hygienists — who are also happily married to patients, and their spouses also continue to be their patients.

Since all these dental friends of mine could be subject to the mandatory revocation provision if a complaint of sexual abuse was ever filed by their spouse, or even by a disgruntled patient or a fellow dentist or hygienist, I can only hope that this draconian legislation is changed before another outstanding career and reputation is ruined.

Dr. Lang is an orthodontic lecturer at the University of Toronto and past president of the Ontario Association of Orthodontists. He maintains an orthodontic practice in Mississauga and Etobicoke, ON. Dr. Lang is co-chair of Oral Health’s editorial board.