As I previously blogged about, I was interviewed by the National Post about changes in the law concerning dentists treating their spouses. Here’s the article which appeared on the front page of the National Post today. The article briefly discusses the new law, what it used to be, and some of my comments concerning same:
The Ontario legislature has loosened one of the world’s most stringent laws on sexual abuse in health care, allowing spouses of doctors, dentists and others to be exempted from a zero-tolerance ban on sex with patients.
The long-standing prohibition put health professionals who treat their spouse at risk of sexual-abuse charges, and has been a source of heated debate.
Some regulators say spouses need to be included in the ban because they can be victims of a “power imbalance.”
Others have called the law nonsensical and inconvenient for professionals practicing in remote areas. It has even been used by disaffected staff or rivals to threaten or blackmail practitioners, say sources in the dental profession.
The legislature last week passed a private member’s bill that appears to accommodate the divergent views, leaving it up to individual regulatory colleges to exempt spouses if they want.
“Sexual abuse is something we all need to stand up against,” said Steve Clark, the opposition Conservative MPP who introduced the legislation. “[But] somebody like a dental hygienist, why would you treat cleaning your spouse’s teeth as sexual abuse? It just doesn’t make any sense.”
The new bill is well drafted after a number of changes, stating that sexual conduct and statements still cannot occur at the time spouses are actually being treated, noted Sheamus Murphy, a spokesman for Deb Matthews, the health minister.
We’ve been inundated by spouses … saying, ‘How come my husband or wife can’t treat me?’
Provincial regulations implemented in 1993 essentially say sexual relations between patients and health professionals — from optometrists to midwives and X-ray technicians — constitute sexual abuse. The penalty can be as much as a five-year suspension and consent is not a defence.
Last year, though, the province’s Health Professions Regulatory Advisory Council issued a report calling for spouses to be exempted, saying the law was the toughest among North American and other jurisdictions it reviewed.
Mr. Clark’s bill follows through on an earlier Conservative promise to address the issue, and eventually won support from the minority Liberal government.
The bill, which still needs Royal assent before becoming law, is being applauded by the province’s dentists, who had mounted the most vigorous lobby for change.
Dentists — especially in isolated areas with no alternatives for dental care — had treated their spouses safely for over a century, and the abuse law rankled many, said Irwin Fefergrad, registrar of the Royal College of Dental Surgeons of Ontario.
“We’ve been inundated by spouses … saying, ‘How come my husband or wife can’t treat me?’ ” he said.
In fact, some dentists have continued to treat their spouses, occasionally giving ammunition to competitors or disgruntled employees.
Michael Carabash, a lawyer who specializes in representing the professionals, recalled one instance where a disgruntled staff member used the law against the new owner of a dental clinic.
“This employee said, ‘I saw you treating your spouse, you shouldn’t do that, it’s sexual abuse,’ “ recalled Mr. Carabash. “She was, I guess, trying to extort the dentist for personal gain.… It caused a lot of sleepless nights.”
Meanwhile, it appears no change is coming for doctors. Their professional group — the Ontario Medical Association — favours exempting spouses, but their regulator, the College of Physicians and Surgeons, will not ask to take advantage of the new law, said Louise Verity, the associate registrar.
The college appreciates that Mr. Clark’s bill allows such agencies to choose whether to change the rules, but believes the law should have been left unchanged, she said.
Exempting spouses would bring back the defence of consent — “exactly what the zero tolerance regime was designed to combat,” open the door to lengthy debate over whether someone is a spouse and fail to protect patients subject to power imbalances, she said.
“In our experience, vulnerability to sexual abuse can and does exist both within and outside spousal relationships,” the college said in a submission last month to the legislative committee that reviewed the bill.
I was fortunate enough to be interviewed by the National Post on the latest legal developments concerning dentists treating their spouses. I’ve previously blogged about this important legal issue here and here.
Here are some points I raised with the National Post:
Be sure to read my previous blogs and watch out for the article in next week’s National Post!
Happy times! Dentists may / will likely soon be able to treat their spouses without fear of losing their license!
The idea that a dentist who treats their spouse could lose their license for 5 years based on some bad laws could all be relegated to a bad memory… You can read this previous blog I wrote about how this all came to be.
Fast forward to October 23, 2013. On that day, the Ontario Parliament passed Bill 70 entitled the Regulated Health Professionals Amendment Act (Spousal Exemption) 2013 . This Bill makes minor amendments to the Regulated Health Professions Act, 1991 by allowing the RCDSO to make a regulation that would allow dentists to treat their spouses without committing what was previously considered “sexual abuse” (and which could have cost the dentist their license for 5 years).
Now, for the dentist to be able to do so, a few things must happen:
1. Bill 70 needs to receive royal assent (a formality).
2. The RCDSO must pass a regulation exempting their members (i.e. dentists) and the Ontario’s Cabinet must approve.
3. The patient must be the dentist’s spouse. The definition of “spouse” is very clear and includes someone who is married to the dentist or who has lived with the dentist in a conjugal relationship outside of marriage continuously for a period of not less than three (3) years. This is based on the definition of “spouse” in other laws, such as the Family Law Act.
4. The dentist must not be engaged in the practice of dentistry at the time the conduct, behaviour or remark that would consistent “sexual abuse” occurs. This is designed to protect spousal patients who may also be victims of sexual abuse.
So to recap: Bill 70 allows individual colleges to determine if their membership feels it’s proper to allow one spouse to treat another and to then make a regulation to adopt the spousal exemption. Currently and previously, if a member of a regulated health profession provides care to their spouse, it is automatically considered sexual abuse. The rationale for this Bill is to eliminate the default charge of sexual abuse within colleges that have a history of regulation as related to treatment of spouses.
This is a great achievement for a number of reasons. First, it was based on a private -member’s Bill which don’t often become law. Second, it found common ground among many legislators. Third, it is very flexible and allows each regulated health college the opportunity to exempt their members if they so choose. Fourth, it still compliments the Ontario Government’s ZERO Tolerance policy against sexual abuse.
Congratulations to all (ODA, Government, Dentists, Spouses!) 😉
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.
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