So the other day, a dentist asked me: is it legally permissible for me to have a “consensual encounter” with a patient who is not my spouse? The answer, technically, is that this would amount to ‘sexual abuse’ under the present law and could land you in hot water (automatic 5 year suspension of your license if you’re discovered / complained about and the allegations are proven). For more on this, please read my previous blogs.
What’s happening with dentists treating spouses?
When we last off (you can read this blog), the RCDSO had to pass a regulation that would permit dentists to treat their spouses. And on March 5, 2014, that’s exactly what happened. This is the second last step that’s needed before the new law takes effect. All that’s left is for provincial Cabinet (after a political party wins, takes office, and appoints a Cabinet) to approve the regulation. This is more of a ceremonial act. There’s nothing that can be done to stop or make changes to the law.
I was fortunate enough to be interviewed by the Toronto Sun about the changes to the law concerning dentists being able to treat their spouses. Stay tuned for when the article comes out (it will be posted here in case you miss it).
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!) 😉
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