COURT FILE NO.: 233/08

DATE: 20081104

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, SWINTON AND RAY JJ.

B E T W E E N:

DR. V.L.

Timothy M. Lowman and Patrick J. Cotter, for the Appellant

Appellant

• and -

THE COLLEGE OF CHIROPRACTORS OF ONTARIO

Chris Paliare and Karen Jones, for the Respondent

Respondent

HEARD at Toronto: September 30, 2008

Swinton J.:

Overview

[1] In a decision dated April 16, 2008, the Discipline Committee of the College of Chiropractors of Ontario (the “College”) found the appellant, Dr. V.L., guilty of professional misconduct because he had sexually abused a patient. He appeals the finding of professional misconduct, as well as the penalty of mandatory revocation of his certificate of registration.

[2] The issue in this appeal is whether the Discipline Committee reached an unreasonable decision in finding there had been sexual abuse, given that the appellant had an existing intimate relationship with the complainant at the time she became his patient.

The Legislative Context

[3] Paragraph 51(1)(b.1) of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”), provides that a member of a regulated health profession commits an act of professional misconduct if the member has sexually abused a patient. “Sexual abuse” of a patient by a member is defined in s. 1(3) to mean:

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient;

(b) touching, of a sexual nature, of the patient by the member; or

(c) behavior or remarks of a sexual nature by the member towards the patient.

[4] Section 1.1 of the Code includes a statement of purpose with respect to the sexual abuse provisions:

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 counseling for patients who have been sexually abused by members and, ultimately, to eradicate the sexual abuse of patients by members.

[5] If a member is found guilty of sexually abusing a patient, there is a mandatory revocation of the member’s certificate of registration if the sexual abuse included sexual intercourse or other specified sexual activity (s. 51(5)). The member can not make an application for reinstatement of the certificate until five years after the revocation.

Factual Background

[6] The appellant is a chiropractor and has been a member of the College since 1997. Around December 26, 2004, he commenced a personal relationship with AM, having met her through an Internet dating service. Shortly thereafter, they commenced a sexual relationship and began co-habiting around mid-March 2005. Up to that time, AM had never received any chiropractic treatment from the appellant.

[7] AM sought chiropractic treatment from the appellant on or about April 8, 2005. The appellant had her sign an informed consent to treatment form on that date. He opened a patient file for her, filled out a patient entrance form, and provided her with treatment on 28 occasions.

[8] Because AM had insurance coverage for her treatments, the appellant began to bill her, so that payment could be made through her insurer.

[9] In mid-October, 2005, AM and the appellant ended their personal relationship. At the same time, the chiropractic treatments provided by the appellant ceased. However, he sent her a bill for an amount in excess of $600.00. When she did not pay, he sent the account to a collections agency. This prompted AM to make a complaint to the College on the basis that the bill was invalid. She stated in her complaint,

As his common law partner, Dr. V.L. adjusted me at our home and at his clinic, but there was never any indication from Dr. V.L. that I would be billed for this. The bill is clearly invalid and yet, despite this, Dr. V.L. forwarded it to Credimax Collections Agency and had my credit negatively impacted and it remains so to this very day.

[10] Although AM made no allegation of sexual abuse, the College charged him with sexual abuse of a patient, as well as a number of charges relating to the billing of his services. The appellant pleaded guilty to the charges that he billed AM’s insurer for fees he would not otherwise have billed her for; he claimed fees from her above the amounts paid by the insurer after their relationship ended; and he referred this allegedly outstanding amount for collection.

The Decision of the Discipline Committee

[11] The Committee found that AM was a “patient” during the period between April 8 and October 17, 2005. They concluded there was no evidence that the patient-chiropractor relationship was “incidental in nature”.

[12] The Committee rejected the appellant’s argument that there was no misconduct because the sexual relationship had begun before the professional relationship. They rejected the view there was a “spousal exemption”. In their view, the key question was whether there was a concurrent sexual and chiropractor-patient relationship, and they found there was concurrency.

[13] The Committee also found there was a power imbalance between AM and the appellant, as shown by an email message from the appellant telling AM that she would have to follow his advice or be discharged as a patient. As well, the appellant had misused his position by sending AM’s account for collection.

[14] The Committee concluded that the appellant had sexually abused AM, a patient, and thereby committed professional misconduct. Subsequently, on June 23, 2008, the Committee imposed the penalty of mandatory revocation of the appellant’s certificate of registration.

The Issue in this Appeal

[15] The issue in this appeal is whether the Discipline Committee of the College reached an unreasonable decision in finding that the appellant sexually abused a patient, AM.

The Standard of Review

[16] The standard of review of a decision of the Discipline Committee applying the sexual abuse provisions of the Code is reasonableness (Rosenberg v. College of Physicians and Surgeons of Ontario (2006), 2006 37118 (ON CA), 275 D.L.R. (4th) 275 (Ont. C.A.) at paras. 36-37).

Was the decision of the Discipline Committee reasonable?

[17] The appellant submits that the Committee misconstrued the applicable legal principles, as set out in Mussani v. College of Physicians and Surgeons of Ontario, 2004 CarswellOnt 5433 (C.A.) and Rosenberg, supra.

[18] Mussani dealt with a constitutional challenge to the mandatory revocation penalty for sexual abuse. The physician in that case argued the legislative provision violated ss. 2(d), 7 and 12 of the Canadian Charter of Rights and Freedom: the right to freedom of association; the right to life, liberty and security of the person; and the protection against cruel and unusual punishment.

[19] The Court of Appeal rejected the Charter challenges. In the course of doing so, Blair J.A. discussed the purpose of the mandatory revocation provisions, noting (at para. 73),

[t]hey must be considered in the context of a general power imbalance between a doctor and patient that can lead to easy exploitation of the relationship by the doctor at the risk of considerable harm to the vulnerable patient.

[20] Blair J.A. also discussed a number of hypotheticals raised by those challenging the legislation, including the circumstance where a physician treated his or her spouse. He adopted the reasons of Then J. in the Divisional Court at paras. 152-163 (C.A. at para. 100) and then went on to add (at para. 101):

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.” (Reasons below, para. 153). 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.

[21] The Court of Appeal dealt again with the mandatory revocation provisions in Rosenberg, supra. The Court affirmed the decision of the Divisional Court dismissing an appeal from the Discipline Committee’s finding that Dr. Rosenberg had committed sexual abuse. Dr. Rosenberg had begun a sexual relationship with a woman who was his patient in 1992. By September 1993, they were living together, and he continued to treat the woman as a patient. The zero tolerance/mandatory revocation provisions came into force January 1, 1994. After the relationship ended in 1998, the patient made a complaint of sexual abuse against the physician.

[22] The physician argued that he was not guilty of sexual abuse because he had a “spousal” relationship with the patient by the time the zero tolerance/mandatory revocation regime came into force. The Court of Appeal rejected the argument that there was a spousal exemption from the legislation, stating that the central question under the legislation is whether there was “a concurrent sexual and physician-patient relationship” (at para. 42). The Court also stated (at para. 48):

This court recognized [in Mussani] that it is “unlikely” that a physician could be guilty of sexual abuse of a spouse. The word “unlikely” is simply inconsistent with an exemption of the kind claimed by the appellant. 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.

[23] The Court concluded it was not unreasonable for the Discipline Committee to have decided, on the facts of the case before it, that the legislation applied to the physician (at para. 43), given that the physician-patient relationship coincided with a sexual relationship.

[24] In the present case, there is a key factual difference from Mussani and Rosenberg, because the sexual relationship between the appellant and AM began well before AM became a patient. There are no other cases dealing with this fact situation.

[25] The appellant submits the Discipline Committee erred by failing to consider whether there was a pre-existing spousal or personal and sexual relationship between him and AM when it interpreted the term “patient” as used in the sexual abuse provisions of the Code.

[26] The respondent submits there is no need to do so. The Discipline Committee’s task was to determine whether there was a concurrent sexual and chiropractor-patient relationship. If so, and the chiropractic treatment provided was regular rather than incidental, the chiropractor committed sexual abuse.

[27] The term “patient” is not defined in the relevant statutory provisions. As the Court of Appeal stated in Rosenberg, supra, the “zero tolerance/mandatory revocation provisions must be interpreted and applied in the context of specific cases as they arise” (at para. 25).

[28] In this case, the Discipline Committee found as a fact that there was a chiropractor-patient relationship between AM and the appellant. There was ample evidence before them to lead to the conclusion that AM was a patient in the clinical sense, as indicated by the consent to treatment form, the numerous treatments and the clinical notes and records.

[29] However, that does not determine whether there was sexual abuse of a patient within the meaning of the Code. To determine that question, the Discipline Committee was required to consider the purpose of the legislation and the jurisprudence from the Court of Appeal, as well as the facts of this particular case.

[30] The Discipline Committee focused on whether there was concurrent sexual activity and a chiropractor-patient relationship. That is the proper form of analysis when a member of a regulated health profession, such as a chiropractor, begins a sexual relationship with someone who is, at that time, a patient. 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).

[31] However, the fact that a health professional treats his or her spouse, while continuing in a sexual relationship, should not automatically trigger a finding of sexual abuse under the Code. The Court of Appeal has indicated in both Mussani and Rosenberg that it would be unlikely that a practitioner would be guilty of sexual abuse if he or she, during the course of marriage, provided incidental treatment to his or her spouse.

[32] The Discipline Committee interpreted the word “incidental” to mean a question of frequency of treatment: if the health professional provided emergency or infrequent treatment to his or her spouse, then the sexual abuse provisions would not be applicable. However, if the professional provided regular treatment to the spouse, as was the case here, then the sexual abuse provisions were applicable.

[33] In my view, the Discipline Committee has given an unreasonable interpretation to the word “incidental”. That term is defined in the Concise Oxford Dictionary (9th ed.) both as “having a minor role in relation to a more important thing, event, etc.” and “following as a subordinate event”. Black’s Law Dictionary (8th ed.) defines “incidental” as “subordinate to something of greater importance, having a minor role”.

[34] I take the references to “incidental” medical care of a spouse in both Mussani and Rosenberg to encompass care arising from or as an incident to the spousal relationship. The concern of the Court of Appeal, in using this term, is not the regularity or frequency of the medical treatment, but whether the medical treatment arose as result of or as an incident to the spousal relationship. I take this from the words of both Blair J.A. and Sharpe J.A. where they refer to “incidental medical care” to a spouse “during the course of a marriage.”

[35] Thus, where there has been a spousal relationship, including a common law one, and medical treatment is subsequently provided to the spouse or intimate partner, a Discipline Committee must ask whether subsequent sexual activity arose out of the spousal relationship or out of the professional-patient relationship. In this case, it failed to do so, and as a result, it reached an unreasonable decision.

[36] This approach is consistent with the purpose of the legislation, which is concerned with the imbalance of power between a health professional and a patient and the vulnerability of a patient, which creates a risk that the patient’s consent to a sexual relationship will be tainted. As Then J. stated in Mussani in the Divisional Court (Mussani v. College of Physicians and Surgeons of Ontario (2003), 2003 45308 (ON SCDC), 226 D.L.R. (4th) 511 at para. 157, approved by the Court of Appeal at para. 100 of its reasons):

It is difficult to conceive of a truly consensual or non-exploitative sexual relationship between a professional and a patient, given the inherent power imbalance, breach of trust and authority and conflict of interest involved.

That concern about abuse of power by the professional and tainted consent does not arise where the sexual relationship existed prior to the giving of medical treatment.

[37] The Discipline Committee in this case found there was an imbalance of power between the appellant and AM. However, they did not address the question whether the imbalance they found created a risk that the consent to sexual activity was tainted. It is not the existence of a power imbalance in the abstract which is of concern in the application of the legislation, but whether there is a power imbalance which renders the consent to sexual activity suspect.

[38] The sexual relationship between the appellant and AM had existed for some months before she became a patient. There is nothing in the record suggesting her consent to sexual activity was suspect during the period that she was a patient. Moreover, AM’s complaint to the College raised no allegation of sexual abuse. She described herself as the appellant’s common law partner, and her complaint was addressed to the billing for services and the referral for collection.

[39] An interpretation of the legislation requiring the Discipline Committee to ask whether the sexual relationship arose out of a pre-existing spousal or intimate relationship is consistent with the College’s policies on sexual abuse and treatment of family members. In Standard of Practice S-014, “Prohibition Against a Sexual Relationship with a Patient”, the College states, “Sexualizing a professional relationship is against the law”. The document appears to deal with a sexual relationship that arises while an individual is a current patient. It does not address the situation of the appellant, who treats a person with whom he has a prior sexual relationship.

[40] It is also noteworthy that the College does not prohibit the treatment of family members, stating in Policy P-040, “Insured Services Under OHIP”,

In treating family members, registrants must comply with all applicable standards of practice, including the Record Keeping Standard of Practice. Further, registrants must not treat a family member in any circumstance in which their professional judgment or objectivity is compromised.

[41] As the Discipline Committee failed to consider the appellant’s pre-existing intimate relationship with AM before she became a patient or to consider the College’s policies regarding treatment of family members, its decision finding the appellant guilty of sexual abuse of a patient was unreasonable.

Conclusion

[42] The appeal is allowed. The decision of the Discipline Committee finding the appellant guilty of professional misconduct and imposing the penalty of mandatory revocation of his certificate of registration is set aside, and the matter is referred back to the Discipline Committee for a new hearing.

[43] If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of this decision.

Swinton J.

Carnwath J.

Ray J.

Released: November 4, 2008

COURT FILE NO.: 233/08

DATE: 20081104

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, SWINTON AND RAY JJ.

B E T W E E N:

DR. V.L.

Appellant

• and –

THE COLLEGE OF CHIROPRACTORS OF ONTARIO

Respondent

REASONS FOR JUDGMENT

SWINTON J.

Released: November 4, 2008