2011 Karen Selick
An edited version of this article first appeared in the September 2, 2011 issue of The Lawyers Weekly.
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State Has No Business in Dentists' Bedrooms
If you’re the spouse or significant other of a dentist in Ontario, you can have sex with your sweetie as often as you both desire. What you must never, ever, do is allow him or her to work on your teeth.
Similar restrictions apply to the spouses and sweethearts of Ontario doctors, chiropractors, physiotherapists, optometrists and 20-odd other health practitioners. Sex is fine, but treatment is forbidden.
Absurd? Of course. Surely if an individual is mentally and emotionally capable of giving or withholding consent to sexual intercourse, he or she is also capable of consenting to dental treatment or eye tests.
But Ontario law does not grasp that logic. According to the Health Professions Procedural Code (part of the Regulated Health Professions Act), it is simply not possible for an individual to be both a patient and a consenting sex partner to a health professional, even if the sexual relationship started first and was clearly not a case of a patient being bullied into sex. Such relationships are deemed “sexual abuse”. The penalty is the mandatory 5-year revocation of the professional’s licence.
This patronizing legislation, in effect since 1994, was enacted with the goal of protecting “vulnerable patients” from sexual predation by their health professionals. But Canada already had legislation protecting people from sexual predation. It’s called the Criminal Code, and it outlaws sexual assault. Since 1992, it has dealt explicitly with those thorny cases where individuals may not genuinely have consented to sex but instead were pressured, threatened, or intimidated into it. Section 273.1 of the Criminal Code provides: “No consent is obtained…where…the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.”
Patients who have had sex with their health professionals can fall into one of three categories:
Now that gays have won the hard-fought battle to have consensual sex with their partner of choice, are health professionals the only remaining group who are to be denied it? When Pierre Trudeau said, “The state has no business in the bedrooms of the nation,” was there some little-known footnote excluding people who also spend time in their partners’ dental chairs?
Mind you, it may sometimes be a bad idea to have sex with your dentist, even if it’s consensual, because if the personal relationship goes sour, you’ll probably want to find a new dentist. But it may also be a bad idea to have sex with your stockbroker, your accountant, your lawyer, your hairdresser, your personal trainer, or your automobile mechanic for precisely the same reason. Yet the state does not feel compelled to put any of these non-medical professionals out of business merely for having consensual sex with a client.
The main reason it’s more problematic having to look for a new doctor than a new personal trainer is that socialized medicine has created an artificial shortage of doctors.
Who ever enacted such a silly law? Readers old enough to remember the 1991 confirmation hearing of U.S. Supreme Court Justice Clarence Thomas may recall it as a watershed event. Before the hearing, the phrase “sexual harassment” was not on many people’s lips or minds. But afterwards, it was everywhere. The witch hunt was on. Radical feminists went on a mission to seek and destroy sexual harassment wherever it might be found—and even where it wasn’t found. Their “protect the vulnerable” rhetoric resonated with Bob Rae’s NDP government, and thus this “zero tolerance” legislation—unique to Ontario among all the provinces—became one of the Rae legacies that continues to bedevil innocent health professionals to this day.
The law was so obviously flawed that someone in the government soon tried to paper over its excesses. In 1995, the Royal College of Dental Surgeons of Ontario received “a letter from the Minister of Health permitting treatment of spouses,” according to Irwin Fefergrad, the college’s registrar. A letter from the Minister of Health? How does that legalize anything?
In any event, the Ontario Court of Appeal made it clear last year in Leering v. College of Chiropractors of Ontario that there is no exemption for spouses.
This law needs reconsideration by the courts or by the legislature for four reasons.
First, it’s demeaning to the vast majority of patients to suggest that every single one of them lacks the maturity and judgment to validly consent to an intimate relationship, merely because some individuals might be vulnerable to the occasional scoundrel. That’s like saying no-one may invest in hedge funds merely because some people were defrauded by Bernie Madoff.
Second, it makes thousands of innocent people pay a penalty for the transgressions of a few guilty people. There are some 256,000 regulated health professionals whose spouses and romantic partners are denied the health professional of their choice. Arguably, this violates their freedom of association or their right to security of the person.
Third, considering the doctor shortage, Ontario can ill afford to throw away doctors who have done nothing genuinely wrong and do not pose any threat to their patients.
But perhaps most importantly, instead
of being a tool for
justice, this law has far too much potential to be used
as a tool for personal
vendettas or even extortion. Several
complaints that have come before disciplinary committees
to date have been brought
by estranged spouses or former girlfriends after the
relationship has ended.
It’s not hard to imagine that a threat to tattle on a professional who has been treating his or her spouse might have some impact in divorce negotiations, or even in professional partnership dissolutions.
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January 2, 2012