© 2011  Karen Selick

An edited version of this article first appeared in the June 29, 2011 online issue of the National Post.
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A Bad Law Waiting to Be Ended

If Ontario Progressive Conservative Party leader Tim Hudak wants to take a page out of Stephen Harper’s book and win support by appealing to one interest group at a time, here’s a suggestion for him.  Regulated health professionals in Ontario—approximately 256,000 of them—would be tickled pink if he pledged to amend one of the most unnecessary and irritating laws on the books. 

The Regulated Health Professions Act prevents health professionals from providing services to their husbands, wives or common-law partners, under the bizarre theory that this protects patients from “sexual abuse”. 

Enacted by Bob Rae’s NDP government in 1993, the code sets up a “zero tolerance” regime for any form of sexual contact between a regulated health professional and a patient.  It prohibits conduct ranging from “remarks of a sexual nature”—which could theoretically include jokes—all the way to sexual intercourse.  All are forbidden, even if the patient consents.   Breaching the code results in the mandatory revocation of the professional’s licence for five years. 

The code governs (among others) doctors, dentists, nurses, chiropractors, dental hygienists, dietitians, audiologists, pharmacists and opticians.

In a few early court cases, judges questioned whether this onerous penalty could possibly have been meant to apply to a health professional who treated his or her own spouse.  Recent cases, however, have clarified that it does.  

Consequently, a health professional who marries a patient must either stop providing services to her or else not engage in sexual relations with her.  The choice is fairly obvious in big cities: dentists send their spouses to other dentists.  But what about remote communities where the nearest dentist may be a hundred miles away?

And what if a city dentist’s spouse thinks her husband is the best in town and wants to continue using him even though she’s also sleeping with him?  Why should she be denied her choice of health care professional when every other Ontarian is free to choose?

The impetus for the legislation was a theoretical “power imbalance” between doctors and their patients that might presumably induce a patient to submit reluctantly to unwanted sexual advances.  However, the range of professionals covered by the code is so broad as to make this theory ludicrous. If your pharmacist or optician tries to seduce you or tell you an unwelcome dirty joke while filling your prescription for drugs or eyeglasses, you can just go to another pharmacist or optician in the next block.  There’s no power imbalance.  The patient holds the purse-strings, and rational pharmacists and opticians realize that it costs them money to drive away patients by offending or frightening them. 

Health professionals who ignore the law and treat their spouses anyhow are setting themselves up for extortion if the relationship ends.  The threat of forcing your estranged spouse out of business for 5 years is a powerful tool in negotiating a separation agreement.   The law can also be used as a weapon by disgruntled employees or former business partners who can “tattle” on a practitioner who treats his spouse, to take revenge for matters completely unrelated to any predatory sexual conduct.

The problem is not merely hypothetical.  A plastic surgeon in Toronto is currently facing disciplinary proceedings after having a long-term affair with a patient.  Incidentally, she also sued him in civil court for $2.5 million but the outcome of that lawsuit is not public due to a confidentiality order.

Nor does the problem affect only male professionals.  In 2005, a dental hygienist had her licence revoked for five years because she had provided hygiene services to a man with whom she had a “spousal relationship.”

Ontario is the only province with both mandatory licence revocation and no spousal exemption.  Prince Edward Island has an explicit spousal exemption.  The other provinces grant disciplinary bodies the discretion to deal with sexual impropriety in proportion to the nature and severity of the alleged misconduct

Health Minister Deb Matthews has asked her advisors for recommendations about implementing a spousal exemption, but she has given them until the summer of 2012 to respond.  Hudak could fast-forward this change by making it an issue in this fall’s election.

But if politicians aren’t prepared to tackle this no-brainer change soon, the Canadian Constitution Foundation has been approached to take the issue to court on behalf of spouses who are being denied their choice of health professional.  One way or another, it’s time to end this silly law.


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