Oral Health Group
Feature

‘The Law is an Ass’ Charles Dickens

September 1, 2004
by Randy Lang, DDS, D. Ortho


An article entitled ‘When Sex and Medicine Mix,’ recently appeared in the Toronto Star. Reading it should send shivers up and down the spine of not only every physician, but also every dentist, and in fact, every health-care professional in Ontario.

The article reported the story of two health professionals, a male physician and a female physiotherapist, both of whom practiced in Burlington, ON, and who also happened to be patients of each other. Over many years of knowing each other, professionally and socially, they fell in love and had an intimate affair that lasted three years.

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Unfortunately, when the affair ended, the physiotherapist decided to file a complaint about the physician to 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 a patient. Even though they were two consenting, sophisticated professionals who knew what they were doing, and even though the affair rose out of the social and not the physician/patient relationship, the College, following the law according to the Health Professions Procedure Code, had no choice but to revoke the physician’s licence to practice medicine for a minimum of five years.

And what if, you might ask, this physician had instead been a female dentist who was asked out by a charming male patient, and their relationship over time became intimate? Would her licence also be in jeopardy if the nice gentleman filed a complaint of sexual abuse against the dentist? Or even more ridiculous, what if this physician was instead an optician who sold the female physiotherapist a pair of glasses. If she asked him on a date and eventually, between eye appointments, their relationship evolved into a consensual sexual relationship, could the optician also lose his career if she filed a complaint against the optician for sleeping with her? The answer to both of these questions, sadly, is yes.

Unfortunately, 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 male optician would be subject to mandatory revocation of their licences for ‘sexual abuse’ of a patient. The Health Professions Procedure 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!

The legislation imposes mandatory revocation without regard for the surrounding circumstances, including the existence of fully informed consent by both parties involved. Moreover, it applies even when the romantic relationship results in a happy marriage that lasts long after the professional treatment relationship comes to an end, but the relationship is eventually brought to the College’s attention by a third party such as a disgruntled previous lover or spouse.

The question of whether the current mandatory five-year licence revocation law remains in place is now going to be decided by the Ontario Court of Appeal. During a two-day hearing this summer, lawyers for the physician who lost his licence were joined by the Ontario Medical Association and the Ontario Nurses’ Association in a constitutional attack on Ontario’s Health Professions Procedural Code’s overly broad licence revocation provision. They argue that it amounts to ‘cruel and unusual punishment’ and violates the rights of all health professionals to ‘liberty and freedom of association’ under the Canadian Charter of Rights and Freedoms.

Surprisingly, the College of Physicians and Surgeons is arguing to support the draconian mandatory licence revocation measures contained in the Code, while at the same time acknowledging that the punishment, dubbed the ‘professional death penalty’, is more severe than many penalties imposed for serious criminal offences.

During the hearing, lawyers supporting the removal of the mandatory revocation provision brought some interesting arguments to the attention of the Court:

In 2001, Prince Edward Island’s Supreme Court threw out a similar law calling for mandatory licence revocation, citing its inability to give fair and flexible justice to different situations of fact involving intimate relationships between physicians and their patients.

The mandatory revocation provision amounts to the government’s interference with the rights of all health professionals, and those treated by them, to make fundamental personal choices–namely, whether to enter into an intimate, consensual, personal relationship with one another.

The mandatory revocation provision goes overboard. For instance, one may reasonably conceive of situations in which an intimate relationship that commenced during the treatment relationship is, in fact, genuinely consensual, perhaps resulting in a long-term, committed marriage. Requiring mandatory revocation in such situations is not necessary to accomplish the government’s objective of eradicating true instances of sexual abuse.

The mandatory revocation provision is too broadly drafted and departs from the legislative scheme for all other cases of professional misconduct by unnecessarily removing all discretionary powers of the Discipline Committee to consider the circumstances in each case and determine fair and appropriate penalties.

It may be that revocation is the appropriate penalty in certain cases, but given that there is such a broad range of circumstances involving sexual and intimate conduct that is covered by the provision, the penalty should be determined by the Discipline Committee of the Colleges. It should take into account the nature and circumstances of each case, including issues relating to consent, age, sex, the nature of the relationship and whether there was, in fact, any power imbalance between the two people in question.

The drastic measure of the mandatory revocation provision was blindly enacted across all health professions even though there was no indication that there were concerns about sexual abuse in any other profession other than medicine. The government acted arbitrarily and without justification in violation of the principles of fundamental justice.

So what does all this mean to the dentist in Ontario? Let me leave you with a few thoughts:

I personally have four classmates who are happily married to previous patients and who, over many years, continue to treat their spouses. And I can think of half a dozen other dental colleagues–two of them female–who are happily married to previous patients and their spouses also continue to be their patients.

Could all these dental friends of mine be subject to the mandatory revocation provision if a complaint of sexual abuse was ever filed by their spouse or even a third party? As crazy as it sounds- you bet!

The Royal College of Dental Surgeons of Ontario (RCDSO) has gone on record with the government saying that, “consensual sex between a dentist and a patient outside the course of practice does not appear to be a marked deviation from community standards, assuming that the patient is not being exploited. Such conduct in some circumstances is unwise, but it is not necessarily abusive.” But this will be of no help to you in a Discipline Hearing. Why not? Because the RCDSO is bound by the mandatory licence revocation provision of the Code.

So the next time you are asked out for a drink by an attractive patient, what should you do? Well, until this draconian legislation is changed–while you are standing in front of your mirror, combing your hair and splashing on your favorite aftershave or perfume–you might want to read this editorial again and then go home and have a nice, cold shower instead.

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. Dr. Lang i
s co-chair of Oral Health’s editorial board.


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