Leering v. College of Chiropractors of Ontario

98 O.R. (3d) 561

Court of Appeal for Ontario,

Feldman, Juriansz and Epstein JJ.A.

February 2, 2010

Professions -- Health professions -- Discipline -- Sexual abuse -- Health Professions Procedural Code prohibiting health care professionals from having sexual intercourse with patient and imposing mandatory five-year licence revocation as punishment -- Discipline committee of College of Chiropractors finding that respondent was guilty of professional misconduct by sexual abuse as he treated complainant as patient after commencing committed relationship with her and while he was cohabiting with her -- Divisional Court allowing respondent's appeal -- College's appeal allowed -- Divisional Court erring in ruling that discipline committee is required to determine whether sexual activity arose out of spousal relationship or out of professional-patient relationship in cases where sexual relationship preceded medical care.

The respondent, a chiropractor, was already living with the complainant in a committed relationship when he started treating her as a patient. The discipline committee of the College of Chiropractors found him guilty of professional misconduct by sexual abuse under the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18). The Code defines "sexual abuse" of a patient as including "sexual intercourse or other forms of physical relations between the member and the patient". Sexual intercourse with a patient is punishable by mandatory revocation of the professional's certificate of registration for at least five years. The discipline committee imposed the mandatory revocation on the respondent. The Divisional Court relied on an Ontario Court of Appeal ruling in allowing the respondent's appeal. The Divisional Court found that a health care professional could provide incidental medical care to a spouse, during the course of a spousal relationship, without establishing a physician/patient relationship which would attract the discipline procedures of the Code. The court interpreted the reference to "incidental" medical care of a spouse to encompass care arising from or as an incident to the spousal relationship and held that, in a case where the sexual relationship preceded the medical care, the discipline committee must decide whether the sexual activity arose out of the spousal relationship or out of the professional-patient relationship. The College appealed.

Held, the appeal should be allowed.

The Divisional Court erred in law by imposing on the discipline committee the obligation to inquire into whether the sexual relationship of the parties arose out of their spousal relationship or their doctor-patient relationship in order to determine whether there was sexual abuse. The disciplinary offence of sexual abuse is defined in the Code as the concurrence of a sexual relationship and a health care professional-patient relationship. There is no further inquiry once those two factual determinations have been made. The issue is not whether the sexual activity is incidental to the professional relationship. The issue is whether the medical treatments were merely incidental to the spousal relationship and did not constitute the spouse as a patient, or whether they were of such a nature that the spouse was a patient within the meaning of the Code. The discipline committee did not err in finding that the complainant was a patient of the respondent. [page562]

APPEAL from the order of Carnwath, Swinton and Ray JJ., 2008 CanLII 56709 (ON SCDC), [2008] O.J. No. 4375, 243 O.A.C. 55 (Div. Ct.) allowing an appeal from a decision of the discipline committee of College of Chiropractors.

Cases referred to Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 CanLII 48653 (ON CA), 74 O.R. (3d) 1, [2004] O.J. No. 5176, 248 D.L.R. (4th) 632, 193 O.A.C. 23, 22 Admin. L.R. (4th) 53, 125 C.R.R. (2d) 340, 136 A.C.W.S. (3d) 156 (C.A.), affg (2003), 2003 CanLII 45308 (ON SCDC), 64 O.R. (3d) 641, [2003] O.J. No. 1956, 226 D.L.R. (4th) 511, 172 O.A.C. 1, 2 Admin. L.R. (4th) 123, 106 C.R.R. (2d) 281, 123 A.C.W.S. (3d) 380 (Div. Ct.); Rosenberg v. College of Physicians and Surgeons of Ontario, 2006 CanLII 37118 (ON CA), [2006] O.J. No. 4380, 275 D.L.R. (4th) 275, 216 O.A.C. 357, 152 A.C.W.S. (3d) 736 (C.A.), consd Other cases referred to Leering v. College of Chiropractors of Ontario, 2008 CanLII 56709 (ON SCDC), [2008] O.J. No. 4375, 243 O.A.C. 55 (Div. Ct.) Statutes referred to Health Professions Procedural Code (Sch. 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18), ss. 1(3), (4), 1.1, 51(1) [as am.], (b.1) [as am.], (5), 72(1), (3), (a), (b) Regulated Health Professions Act, 1991, S.O. 1991, c. 18 Authorities referred to College of Physicians and Surgeons of Ontario, Task Force on Sexual Abuse of Patients, Final Report of the Task Force on Sexual Abuse of Patients (Toronto: College of Physicians and Surgeons of Ontario, 1991)

Chris G. Paliare and Karen Jones, for appellant.

Timothy M. Lowman and Patrick J. Cotter, for respondent.

The judgment of the court was delivered by

[1] FELDMAN J.A.: -- Health care professionals are prohibited from having sexual intercourse with a patient. If they do, that is professional misconduct, defined as sexual abuse, and is punishable by mandatory revocation of the professional's certificate of registration for a minimum of five years: Health Professions Procedural Code (Sch. 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18), ss. 1(3), 51(5), 72(3).

[2] Because this is a zero-tolerance provision, it applies whenever a regulated health care professional has sexual intercourse with a patient, regardless of the circumstances. Because of the mandatory penalty of five years out of practice for the health care professional, courts have struggled with the application of the section in circumstances that may appear not to fit the ordinary understanding of sexual abuse, such as where the patient is a spouse or in an intimate partnership with the health care professional. [page563]

[3] In this case, the respondent chiropractor was in a committed relationship with the complainant and was cohabiting with her before he commenced treating her as a patient. The discipline committee of the College of Chiropractors found him guilty of the professional misconduct of sexual abuse and imposed the mandatory certificate revocation. The Divisional Court set aside that decision as unreasonable, finding that the sexual abuse provisions were not intended to apply when the sexual relationship began before the chiropractor-patient relationship.

[4] In my view, the Divisional Court erred in its interpretation of the zero-tolerance provisions and its application to the facts as found by the discipline committee. For the reasons that follow, I would restore the decision of the discipline committee.

Facts

[5] The respondent is a chiropractor in Waterloo, Ontario and a member of the College since 1997. He and the complainant met in December 2004 and began a personal relationship, which became a sexual relationship. They moved in together about mid- March 2005. In April 2005, the complainant switched chiropractors and commenced regular chiropractic treatments with the respondent. She received 28 treatments between April and October 2005, both at the clinic and at home. He billed her, and although she did not pay, he marked her bills as paid and she submitted them to her insurer for reimbursement. When she received the money from the insurer, she would pass it on to the respondent. When their personal relationship ended in October 2005, the respondent attempted to collect the balance owing for his chiropractic services of $567 from the complainant. When she refused to pay, he referred the account to a collection agency on November 17, 2005. When counsel for the complainant was unable to resolve the account matter with the respondent, she complained to the College. It was the College that determined that the respondent should be charged with sexual abuse.

Decision of the Discipline Committee

[6] The two issues before the panel were whether the complainant was a patient of the respondent and if so, whether their sexual relationship occurred while she was his patient.

[7] The panel determined that the complainant was a patient of the respondent between April and October 2005. They noted that this was not disputed. They also listed the factors they relied on to confirm the chiropractor-patient relationship: the respondent opened a patient file that included a patient history, physical examination, diagnosis, plan of management, prognosis, [page564] diagnostic imaging reports and a written record of treatments; he had the complainant complete an informed consent to treatment form; he commenced billing immediately; he wrote a letter for the complainant referring to her as his patient; he wrote a formal patient discharge letter; he recorded her information in financial records; he filed an insurance claim for orthotics for the complainant; he wrote a letter of consultation to the complainant's primary physician; he made written statements to the complainant referring to her as his patient and his clinical patient.

[8] It was also not disputed that the respondent and the complainant were in a sexual relationship during the time when she was his patient.

[9] The panel considered the respondent's argument that because the sexual relationship began before the complainant became the respondent's patient, the zero-tolerance/mandatory revocation policy should not apply. The panel rejected that argument. It found that the key concern in sexual abuse cases is the protection of the public and that concern applies no matter what the timing of the commencement of the patient relationship in relation to the sexual relationship.

[10] The panel referred in detail to the decisions of this court in Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 CanLII 48653 (ON CA), 74 O.R. (3d) 1, [2004] O.J. No. 5176 (C.A.) and Rosenberg v. College of Physicians and Surgeons of Ontario, 2006 CanLII 37118 (ON CA), [2006] O.J. No. 4380, 275 D.L.R. (4th) 275 (C.A.). The panel adopted the reasoning and concerns of this court expressed in Rosenberg, that if discipline committees were to create a "spousal exemption", they would be concerned with examining and deciding whether a relationship qualified as "spousal", rather than focusing on "the central question posed by the legislation, namely, was there a concurrent sexual and physician-patient relationship": see para. 42.

[11] The respondent also argued before the panel that other chiropractors and health care professionals were treating spouses or partners and not being disciplined. The panel also rejected this argument. It found that the respondent was familiar with the prohibition against sexual involvement with a patient, but still proceeded to engage in a sexual relationship with his patient. It held that the fact that others in the profession may be engaging in the same conduct was not a defence to the respondent's conduct.

[12] The panel also rejected the respondent's argument that because he was in an intimate relationship with the complainant before she became his patient, this was not a situation where she was vulnerable as a patient, nor was there a power [page565] imbalance between them in the circumstances. The panel found that there was a power imbalance and it arose from the coexistence of the sexual and chiropractor/patient relationship. This was born out first by an initial e-mail the respondent sent to the complainant before he accepted her as a patient:

The condition on you coming in as a patient is that you have to follow my advice. If you don't that is ok, but then you will be discharged. I do treat it (treatment) separately and try to remain objective. [Exhibit 5 p. 120 April 1, 2005.]

[13] Second, at the end of their sexual and patient relationship, the respondent again misused his position as her chiropractor by sending her account to a collection agency. The panel concluded that the respondent did this not for the money but to cause his former partner emotional harm, and that his actions constituted an abuse of power that "exposes the vulnerability of the patient".

[14] Finally, the panel 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.

Reasons of the Divisional Court [See Note 1 below]

[15] The question the court had to determine on appeal by the chiropractor was whether the discipline committee's decision that he was guilty of professional misconduct by sexual abuse under the Health Professions Procedural Code was an unreasonable one, because the respondent and the complainant were already in an intimate relationship before she became his patient.

[16] The Divisional Court focused its analysis on the two recent Ontario Court of Appeal decisions that discuss the mandatory revocation provisions in the context of a spousal or similar relationship between the health care professional and the patient, Mussani and Rosenberg. The Divisional Court distinguished those cases from the present one on the basis of what it [page566] identified as the key factual difference that, in this case, the sexual relationship began before the doctor/patient relationship.

[17] The court stated at, para. 30, that:

The zero tolerance/mandatory revocation provisions were meant to target sexual activity that arises after a professional- patient relationship has been established. There is a risk of an abuse of power by the professional, as well as a risk that consent to sexual activity is tainted by the imbalance of power between the professional and the patient and the vulnerability of the patient (Mussani, supra, at para. 21).

[18] The court reasoned, therefore, that treating one's spouse while continuing a sexual relationship should not automatically trigger a finding of sexual abuse by the health care professional. Referring to the Court of Appeal decisions in Mussani and Rosenberg, the Divisional Court stated [at para. 31] that "incidental" treatment of a spouse would be unlikely to make the practitioner guilty of sexual abuse. [See Note 2 below]

[19] The issue therefore turned on the definition of "incidental". The court found that the discipline committee erred by interpreting "incidental" to refer to the frequency of treatment, so that if the practitioner provided regular treatment to the spouse, that would not be considered to be incidental. That interpretation, the Divisional Court held [at para. 34], was an unreasonable one. Rather, the court believed that the term "incidental medical care", as used by the Court of Appeal, meant "care arising from or as an incident to the spousal relationship" and did not refer to the frequency or regularity of treatment.

[20] Therefore, according to the Divisional Court [at para. 35], the test to be applied in a case where the health professional provides treatment to his or her spouse is "whether subsequent sexual activity arose out of the spousal relationship or out of the professional-patient relationship". The court concluded that because the discipline committee did not ask or answer that question, its decision in this case was unreasonable.

[21] The Divisional Court further explained that the focus of the provisions is on the power imbalance that exists between a health care professional and his or her patient. The court reasoned [at para. 36] that the power imbalance and consequent vulnerability of the patient "creates a risk that the patient's [page567] consent to a sexual relationship will be tainted". As a result, the issue is "whether there is a power imbalance which renders the consent to sexual activity suspect".

[22] In this case, the court found there was no evidence suggesting that the complainant's consent to sexual activity was suspect during the period she was a patient of the respondent.

[23] The court also referred to two of the College's written policies as supportive of its interpretation. In Standard of Practice S-014, "Prohibition Against a Sexual Relationship with a Patient", it states that: "Sexualizing a professional relationship is against the law." The court noted that this document does not appear to address the situation where the patient relationship only arises after the sexual relationship. The court also noted [at para. 40] that Policy P-040, "Insured Services Under OHIP", does not prohibit the treatment of family members except in circumstances where the professional judgment or objectivity of the chiropractor is compromised.

[24] The Divisional Court summarized its decision by saying that because the discipline committee failed to consider the pre-existing intimate relationship between the respondent and the complainant before she became a patient, and the College's policies regarding the treatment of family members, its decision that the respondent was guilty of sexual abuse of a patient was unreasonable. It therefore set aside the decision and the mandatory certificate revocation, and referred the matter back to the discipline committee for a new hearing.

Issues

(1) Did the Divisional Court err in law in its interpretation of the sexual abuse/zero-tolerance/mandatory revocation provisions of the professional conduct Code governing health care professionals including chiropractors?

(2) If so, did the Divisional Court err by applying an incorrect test to determine whether the decision of the discipline committee was unreasonable?

Analysis

[25] This is the third decision of this court that has considered the intent and effect of the zero-tolerance/ mandatory revocation provisions under the Health Professions Procedural Code for sexual abuse by a health care professional. In Mussani and Rosenberg, the court reviewed in detail the history leading up to the enactment of the provisions in 1993 by the legislature (and proclaimed in force on January 1, 1994), based on the [page568] recommendation made in the Final Report of the Task Force on Sexual Abuse of Patients [See Note 3 below] and following widespread consultation with the medical profession.

[26] Both Blair J.A. in Mussani and Sharpe J.A. in Rosenberg listed the principal factors that led the Task Force to recommend the zero-tolerance/mandatory revocation policy. They bear repeating because they explain the context in which these provisions were considered and accepted by the legislature as an appropriate response to the increasing problem of sexual exploitation of patients by physicians at that time. I quote from the Mussani decision, at paras. 20-23:

The Task Force recommended a policy of zero tolerance together with the mandatory revocation of a doctor's licence as the appropriate means of dealing with the problem of sexual abuse of patients. In formulating its recommendations, it consulted with patients, doctors, advocacy groups, and institutions such as the College. During six months of hearings it received 303 detailed reports of sexual abuse. It reviewed a number of studies that had examined incidents of sexual abuse by physicians, including a Canadian survey, which found that 8% of Ontario women reported sexual harassment or abuse by doctors. The Task Force found ample evidence that sexual abuse by physicians was a serious societal problem.

Its recommendations for zero tolerance and mandatory revocation were founded upon a number of important findings and factors. Principal amongst these were the following: a) the general vulnerability of patients in such relationships; b) the power imbalance that almost invariably exists in favour of the practitioner, thus facilitating easy invasion of the patient's sexual boundaries; c) the privileged position of doctors in society, based on their education, status and access to resources; d) the breach of trust entailed in such conduct by physicians; e) the serious, long-term injury to the victim, both physical and emotional, that results from sexual abuse, including the harmful effects on future care caused by the victim's inability to place her trust in other doctors and caregivers; f) the fact that sexual abuse tarnishes public trust in the entire profession; g) the results of an historical review by the Task Force of sanctioning decisions by the College's Discipline Committee and the Divisional Court, which demonstrated a leniency that reflected "a profound non-appreciation of the harm done to victims"; and, [page569] h) the significant risk of recidivism by abusers, enhanced by the ineffectiveness of rehabilitation measures and previous restrictions on doctors' practices in providing protection against the re- occurrence of abuse. [The Task Force on Sexual Abuse of Patients, Final Report (Toronto: The Task Force, 1991) at 15, 16, 24, 92 and 97, See also the Reasons of the Divisional Court (reported as Mussani v. College of Physicians and Surgeons of Ontario (2003), 2003 CanLII 45308 (ON SCDC), 64 O.R. (3d) 641) at para. 26.]

The Task Force recommended that the penalty for "sexual violation" of a patient -- i.e., any physical sexual conduct -- be mandatory revocation of licence for five years. It acknowledged this was severe, but stated the sanction was justified based on the foregoing considerations and the members' conclusion that doctors should be held to the highest standard of conduct and accountability in this area.

In December 1991, an all-party resolution in the Legislature approved the findings and major recommendations of the Task Force, including the recommendation of a mandatory revocation scheme. A year later, on November 25, 1992, the Minister of Health introduced Bill 100, amending the Regulated Health Professions Act to implement the recommendations. It proposed the imposition of the mandatory revocation of licence in a somewhat narrower range of situations than envisaged by the Task Force. Instead of revocation for all forms of sexual touching except kissing, as was recommended, Bill 100 provided for the mandatory penalty only in cases of sexual intercourse and what the parties refer to as the "frank" forms of physical sexual relations listed in s. 51(5) of the Code . . . .

[27] The relevant provisions of the Code that provide the offence of sexual abuse and the mandatory certificate revocation when the abuse is sexual intercourse with a patient are the following:

1(3) In this Code,

"sexual abuse" of a patient means, (a) sexual intercourse or other forms of physical relations between the member and the patient, (b) touching, of a sexual nature, of the patient by the member, or (c) behaviour or remarks of a sexual nature by the member towards the patient.

Exception

(4) For the purposes of subsection (3),

"sexual nature" does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.

Statement of Purpose, sexual abuse provisions

1.1 The purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse, to provide funding for therapy and counselling for patients who have been sexually abused by members and, ultimately, to eradicate the sexual abuse of patients by members. [page570] . . . . .

Professional Misconduct

51(1) A panel shall find that a member has committed an act of professional misconduct if, . . . . . (b.1) the member has sexually abused a patient . . . . .

(5) If a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2): 1. Reprimand the member. 2. Revoke the member's certificate of registration if the sexual abuse consisted of, or included, any of the following, i) sexual intercourse, . . . . .

Applications for Reinstatement

72(1) A person whose certificate of registration has been revoked or suspended as a result of disciplinary or incapacity proceedings may apply in writing to the Registrar to have a new certificate issued or the suspension removed. . . . . .

(3) An application under subsection (1) in relation to a revocation for sexual abuse of a patient, shall not be made earlier than, (a) five years after the date on which the certificate of registration was revoked; or (b) six months after a decision has been made in a previous application under subsection (1).

[28] These provisions contain no exemption 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 their relationship as spouses or are in a spousal-type relationship.

[29] In Rosenberg, Sharpe J.A. summarized the effect of the provisions this way, at para. 25:

The legislation, like the Task Force recommendations, is clear and unambiguous: 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. [page571]

[30] Nevertheless, the question of whether there should be a spousal exemption first arose in Mussani as a hypothetical situation to be considered in the context of the constitutional challenge to the provisions as overly broad. In the Divisional Court [(2003), 2003 CanLII 45308 (ON SCDC), 64 O.R. (3d) 641, [2003] O.J. No. 1956 (Div. Ct.)], Then J. considered the issue as one of interpretation of the term "patient" in the context of the provision. He doubted that a disciplinary tribunal would consider a physician's spouse to be a patient "simply because [the] physician may have treated his or her spouse" [at paras. 152-154]:

The first proposed hypothetical is the situation where a physician treats his or her spouse. "Patient" is not defined in the RHPA. This means that Discipline Committees and the courts must interpret the meaning of "patient" in the context of determining whether sexual activity occurred in the professional-patient relationship. It seems highly unlikely that tribunals or courts would interpret this term as including a physician's spouse. Neither the appellant nor the OMA provided a single disciplinary case in which the term "patient" was interpreted to include a physician's spouse.

Interpreting "patient" for the purposes of s. 51(5)2 of the Code as including a spouse would be an unreasonable interpretation of the legislation. The sanction in s. 51(5)2 is ordered if "a panel finds a member has committed an act of professional misconduct by sexually abusing a patient." It is far-fetched to characterize the intimate relationship between spouses as "sexual abuse" simply because a physician may have treated his or her spouse.

. . . The "zero tolerance" regime was adopted because of the power imbalance and relationship of trust between physician and patient. It was recognized that in these circumstances patient consent to such relationships was suspect and could seriously harm vulnerable patients. Prohibitions exist because of concern about the consequences for the mental and physical health of a patient who enters into an intimate relationship when vulnerable. These concerns are not present in the case of spouses.

[31] In the Court of Appeal, Blair J.A. agreed that the issue would turn not on an exemption for spouses, but on whether in the circumstances there was a physician-patient relationship between them as well as a spousal relationship. In articulating his analysis, he introduced the concept of "incidental medical care" in the following passage, at para. 102:

While the spousal hypotheticals appear troubling at first blush, I agree with the conclusion of Then J.: "It is far- fetched to characterize the intimate relationship between spouses as sexual abuse merely because a physician may have treated his or her spouse." . . . The fact that during the course of a marriage a physician may provide incidental medical care to his or her spouse is unlikely, in my view, to establish a physician/patient relationship which would attract the discipline procedures of the Code.

[32] In Rosenberg, the doctor argued, relying on Mussani, that the zero-tolerance/mandatory certificate revocation provisions were not intended to apply to a doctor who treats a person with [page572] whom he is in a spousal-type relationship. In that case, the complainant had been a patient of the doctor for four years when they commenced a sexual relationship in 1992, prior to the enactment of zero-tolerance provisions, which took effect in 1994. By that time, they were living together and planned to marry, although he was still married to his wife. The doctor continued treating the complainant as a patient until 1998, when their personal relationship ended.

[33] Sharpe J.A., speaking for the court, rejected the doctor's argument, stating, at para. 48:

In my view, the decision of this court in Mussani indicates that the question is not to be approached on the basis of any categorical exclusion of spouses, but on the basis of whether or not a physician-patient relationship has been established, recognizing that it is unlikely that a physician-patient relationship will be established between a physician and his or her spouse.

[34] The court found that the discipline committee had followed this approach and had found, based on ample evidence, including a concession by the physician, that the complainant was his patient. In those circumstances, as the physician- patient relationship coincided with the sexual relationship between them, the physician was guilty of sexual abuse as defined.

[35] In this case, the discipline committee also followed that approach. Applying its expertise, and based on overwhelming evidence, including the admission of the chiropractor, the panel found that the complainant was the respondent's patient from April to October 2005, during the time they were in an intimate, sexual relationship.

[36] Nevertheless, the Divisional Court objected to the approach taken by the discipline committee in deciding that the chiropractor and the complainant were in a professional-patient relationship. The court agreed that the complainant was a patient of the respondent "in the clinical sense", based on the consent to treatment form, the numerous treatments and the clinical notes and records. The Divisional Court concluded, however, that that did not automatically determine whether there was sexual abuse of the patient within the meaning of the Code.

[37] With great respect to the Divisional Court, in proceeding to impose a further requirement in order to find sexual abuse beyond the concurrence of a chiropractor-patient and a sexual relationship, the Divisional Court erred in law. The disciplinary offence of sexual abuse is defined in the Code for the purpose of these proceedings as the concurrence of a sexual relationship and a health care professional-patient relationship. There is no further inquiry once those two factual determinations have been made. [page573]

[38] There is some room for interpretation and application of the particular circumstances of a case in the committee's determination of the second issue, whether the complainant was a patient of the chiropractor. As this court said in Mussani and Rosenberg, where incidental medical care or, for the purposes of this case, incidental chiropractic treatment is provided during the course of a spousal relationship, it is unlikely that the discipline committee will find that the spouse was a patient within the meaning of the Code. As the term "patient" is not defined in the Code, it is up to the discipline tribunal to apply its expertise in considering all the facts and circumstances in order to determine whether a complainant who was having a sexual relationship, including as a spouse, was also a patient of the health care professional and in that context, whether any medical care that was provided was merely "incidental" medical care.

[39] The Divisional Court interpreted this court's references to "incidental" medical care of a spouse "to encompass care arising from or as an incident to the spousal relationship" (at para. 34). It viewed the inquiry into whether medical care was "incidental" as an exercise to determine whether the power imbalance in the doctor-patient relationship was used in the particular case to obtain consent to the sexual activity. To do that, it said, the discipline committee must decide whether, in a case where the sexual relationship preceded the medical care, the subsequent sexual activity "arose out of the spousal relationship or out of the professional-patient relationship" (at para. 35).

[40] Again, with respect to the Divisional Court, the inquiry it proposes fails to adequately heed the role and expertise of the discipline committee in interpreting and applying the zero- tolerance provisions of the Code, and attaches a meaning to the phrase "incidental medical care" which was not intended by this court in Mussani and Rosenberg.

[41] The discipline committee of the College has expertise in professional conduct matters as they relate to chiropractic practice. Their expertise is not in spousal relations or dynamics, nor would it be fruitful, productive or relevant to the standards of the profession for the committee to investigate the intricacies of the sexual and emotional relationship between the professional and the complaint. That is why the Code has defined the offence in such a way that the fact of a sexual relationship and the fact of a doctor-patient relationship are what must be established. The first issue should be straightforward. The second requires consideration of a number of factors by the committee in the application of its expertise, as occurred in this case. [page574]

[42] The term "incidental" is defined in Black's Law Dictionary as: subordinate to something of greater importance; having a minor role, and in the Oxford English Dictionary as: "1. Occurring or liable to occur in fortuitous or subordinate conjunction with something else of which it forms no essential part; casual . . . ." These definitions, as well as others that are similar, indicate that the medical care that is referred to as incidental is minor in nature, casual, or arising in a fortuitous conjunction with the spousal relationship. Two examples of "incidental medical care" might be where a doctor and her spouse are in an accident and the doctor provides on-the-spot emergency care to her spouse, or a chiropractor's spouse suffers a muscle spasm and the chiropractor performs a manipulation in order to provide immediate relief. It would be unreasonable for a spouse to be denied treatment in such circumstances.

[43] The Divisional Court criticised the discipline committee for using the frequency of treatment as an indication of whether the treatment was "incidental". Although the word "incidental" is not defined in terms of the frequency of what may occur, where medical treatment is provided on a regular basis by appointment in office, and where payment is expected, it is most unlikely that such treatment would be considered "incidental".

[44] Finally, the Divisional Court seems to have interchanged the concept of incidental medical treatment with incidental sexual activity. The court first stated that the concern of the Court of Appeal in using the term "incidental" was "whether the medical treatment arose as a result of or as an incident to the spousal relationship" (at para. 34). However, in the next paragraph, the Divisional Court reasoned that in a case where the medical treatment commenced after the sexual relationship was in place, the discipline committee must ask "whether subsequent sexual activity arose out of the spousal relationship or out of the professional-patient relationship" (at para. 35).

[45] The Divisional Court correctly identified the purpose of these provisions of the Code, which is to prevent a health care professional from being in a position to use the power imbalance between a doctor and patient to obtain consent to sexual activity. However, the offence is complete when a doctor is in a sexual relationship with a patient, regardless of whether there was any power imbalance in the particular case, and whether it was used in fact to obtain consent to sex.

[46] The issue, therefore, is not whether the sexual activity is incidental to the professional relationship. The issue is whether the medical treatments were merely incidental to the spousal [page575] relationship and did not constitute the spouse as a patient, or whether they were of such a nature that the spouse was a patient within the meaning of the Code.

[47] Finally, I do not agree with the Divisional Court that the discipline committee erred by not referring to policies of the College relating to treating family members. To the contrary, the discipline committee made a specific finding that the respondent was aware that the rules of professional conduct prohibited him from engaging in a sexual relationship with a patient. Nevertheless, he apparently believed that once he and the complainant were living together, the rule did not apply to him. He had no basis for that belief.

[48] The College's Standard of Practice S-014 specifically states: "Under no circumstances should a member have a sexual relationship with a current patient" and "a sexual relationship with a patient is strictly forbidden by law". Under the heading "Procedure", the first bullet states: "It is never appropriate to have a sexual relationship with a patient who is receiving active treatment. The professional relationship must be terminated". The fact that one line is phrased as "Sexualizing a professional relationship is against the law", does not thereby limit the application of the rule or of the Standard to situations where the patient relationship preceded the sexual relationship. I also note, that for further certainty the Standard states in bold: "Note to Readers: In the event of any inconsistency between this document and the legislation that affects chiropractic practice, the legislation governs."

[49] In Mussani and in Rosenberg, this court observed that the application of the zero-tolerance/five-year mandatory revocation provisions might have been harsh, especially in circumstances where the parties appeared to be in a truly consensual relationship unrelated to their doctor-patient relationship. The same can be said here. However, as in those cases, the respondent could have avoided the entire problem, in this case simply by not starting to see the complainant as his patient after they moved in together.

Conclusion

[50] I conclude that the Divisional Court erred in law by imposing on a discipline committee the obligation to inquire into whether the sexual relationship of the parties arose out of their spousal relationship or their doctor-patient relationship in order to determine whether there was sexual abuse. The Code requires no such inquiry. The Divisional Court found the discipline committee's finding of sexual abuse unreasonable because it did not [page576] apply that test and did not look at the College's policy documents when assessing the issue. In my view, the discipline committee made no error in its interpretation or application of the Code, nor is there any basis to find its decision unreasonable.

[51] I would therefore allow the appeal, set aside the decision of the Divisional Court and restore the decision of the discipline committee and the mandatory revocation of the certificate of the respondent, with costs of the appeal and of the appeal to the Divisional Court to the appellant fixed in the total amount of $30,000.

Appeal allowed.

Notes

Note 1: Leering v. College of Chiropractors of Ontario, 2008 CanLII 56709 (ON SCDC), [2008] O.J. No. 4375, 243 O.A.C. 55 (Div. Ct.).

Note 2: As discussed below, the Court of Appeal decisions do not state that incidental medical treatment of a spouse would be unlikely to amount to sexual abuse, but the incidental medical treatment of a spouse would be unlikely to make the spouse a patient.

Note 3: College of Physicians and Surgeons of Ontario, Task Force on Sexual Abuse of Patients, Final Report of the Task Force on Sexual Abuse of Patients (Toronto: College of Physicians and Surgeons of Ontario, 1991).