Can a dentist treat their spouse? Not really…but that may change soon…
Is it legal for an Ontario dentist to treat their spouse?
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Michael Carabash) or David Mayzel.
So here is the question: is a dentist treating their spouse permissible under the law? And what about in cases of an emergency?
Let’s start off with the Professional Misconduct Regulations (http://www.canlii.org/en/on/laws/regu/o-reg-853-93/latest/o-reg-853-93.html). Those regulations say it is an act of professional misconduct to contravene the RCDSO’s standard of practice. Now, while 6 of the 21 health regulatory colleges make it a standard of practice to prohibit the treatment of spouses – the RCDSO does not have any such standard of practice on its website (see http://www.health.gov.on.ca/en/common/ministry/publications/reports/hprac/docs/spousal_patient.pdf, p. 15 and footnotes 27 and 30). So lets move on…
The Health Professions Procedural Code (which governs chiropractors and dentists and other regulated health professionals) is really what we’re after. It has a zero-tolerance/mandatory revocation provision. The Health Professions Procedural Code is contained in Schedule 2 of the Regulated Health Professions Act (http://www.canlii.org/en/on/laws/stat/so-1991-c-18/latest/so-1991-c-18.html). “Sexual abuse” is defined in section 1.(3) of the Code to include “sexual intercourse or other forms of physical sexual relations between the member (i.e. a dentist) and the patient”. Under section 51(1)(b.1) of the Code, it is an act of professional misconduct if a member (i.e. a dentist) has sexually abused (i.e. is in a sexual relationship with) a patient. So this generally includes spousal relationships. The penalty for being found guilty of sexually abusing a patient is having one’s certificate of registration revoked for five (5) years: section 72 of the Code. This law was the result of the government wanting to have a policy of zero tolerance when dealing with problems of sexual abuse of patients. But unfortunately, no exception to the rule or the penalty was created for consenting spouses! The law is very black and white and does not take into consideration whether the patient was consenting. In a nutshell, if a dentist-patient relationship coincides with a sexual relationship between them, then the dentist will be guilty of sexually abusing the patient.
Next, let’s take a look at some caselaw to see what the courts have said about all of this. In the case of Leering v. College of Chiropractors of Ontario,  O.J. No 406, the Ontario Court of Appeal had to deal with a situation where a chiropractor (Dr. Vincent Leering) had treated a patient with whom he had a sexual relationship with (though not his spouse). The Ontario Court of Appeal reviewed the relevant caselaw – including whether there was or ought to be a “spousal” exception and concluded that, while the application of the zero-tolerance/5 year mandatory revocation provisions might be harsh (even in circumstances where the parties appeared to be in a truly consensual relationship unrelated to their doctor-patient relationship), the law was very clear. The College of Chiropractors had a Standard of Practice that said “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”. [Note: as mentioned above, I did not find any similar Standard of Practice with the RCDSO]. The Court of Appeal concluded that the chiropractor could have avoided the entire problem by simply not seeing the patient after they moved in together. Note: the person who complained to the College of Chiropractors was the patient after her relationship with the chiropractor deteriorated and he sent her the bill! As a result, the Court of Appeal upheld the Chiropractor College of Ontario’s Discipline Committee’s finding that the chiropractor was guilty of professional misconduct and revoked his certificate of registration.
Now, worth mentioning is that the Court of Appeal did acknowledge an exception to the general (and harsh) rule. And that exception is this: if “incidental” treatment was provided during the course of a spousal relationship (for example, in situations of emergency care), then it would be unlikely that the spouse would be considered a “patient” within the meaning of the Code. “Patient” is not a defined term and it will be up to a Discipline Committee to conclude whether a person was a “patient” after considering all of the relevant circumstances. The Court gave the following two examples of “incidental” treatment: “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”. In these circumstances, the Court held that it would be “unreasonable for a spouse to be denied treatment in such circumstances”.
Next, it’s important to know the RCDSO’s view of the Leering case After the Leering decision, the RCDSO issued a warning to dentists about the Leering decision and the potential be charged with sexual abuse for treating one’s spouse: see Royal College of Dental Surgeons of Ontario, “Ontario Court of Appeal decision says Zero Tolerance Rule bans health providers from treating spouses or partners,” Dispatch, May/June 2010 (http://www.rcdso.org/Assets/DOCUMENTS/Dispatch/Dispatch_2010_v24_no2.pdf, p. 32).
So the Health Professions Procedural Code, coupled with the Leering decision (harsh rule with a tiny exception), are still the law (at least for now – see below) and the RCDSO reaffirmed all of this.
It is also interesting to note that, in a Toronto Star article (Theresa Boyle, “Dentists flout ‘stupid’ law that treats them as sex abusers”, Toronto Star, 20 April 2011), before the Leering decision, dentists were free to treat their spouses:
“In 1995, after successful lobbying by dentists, the then health minister sent a letter to the Royal College of Dental Surgeons of Ontario, giving them permission to treat spouses and romantic partners, something they had a long history of doing. But last year’s Court of Appeal decision overrides that exemption, leaving the dentists in limbo.”
Finally, some perhaps encouraging news. In early June 2012, the Health Professions Regulatory Advisory Council recommended an amendment to the definition of “sexual abuse” in the Health Professions Procedural Code to exclude consensual relations within a spousal relationship (see http://www.rcdso.org/Assets/DOCUMENTS/Dispatch/Dispatch_2012_v26_no3.pdf and http://www.health.gov.on.ca/en/common/ministry/publications/reports/hprac/docs/spousal_patient.pdf). The RCDSO advocated for these amendments (the College of Physicians and Surgeons did not). Now, until the law is changed, what has been written above still stands as the law. Therefore, the RCDSO asks dentists to continue to abide by the current law. It is now up to the Minister of Health and Long-Term Care to decide whether she will accept these recommendations to amend the current law.
So there you have it in a nutshell: dentists should generally not be treating their spouses as this could amount to sexual abuse until the law is changed.