The Regulated Health Professions Act, 1991 (the “RHPA”) and its Health Professions Procedural Code (the “Code”) contain strict, zero-tolerance provisions regarding sexual abuse of patients by regulated health professionals. Where a health professional engages in certain specified frank sexual acts with a patient, including sexual intercourse, oral sex and masturbation, he or she faces the mandatory revocation of his or her license.
Much to the chagrin of dentists and other health professionals who wish to provide treatment to their spouses, the RHPA does not exempt spouses from the definition of “patient.” As a result, a health professional may be guilty of sexual abuse when providing treatment to his or her spouse, due to the coexistence of a sexual relationship and a health care professional-patient relationship. The Ontario Court of Appeal has confirmed that the sexual abuse provisions of the RHPA apply even where the patient is the health professional’s spouse, and that the penalty of revocation in these circumstances was both mandatory and constitutional.
The possibility of exemption from the sexual abuse provisions of the RHPA for health professionals wishing to treat their spouses finally arose in October 2013 with the introduction of Bill 70, the Regulated Health Professions Amendment Act (Spousal Exception). Bill 70 amended the Code to permit individual health colleges to enact regulations permitting its members to treat their spouses, such that sexual relations between a health professional and a patient will not be considered sexual abuse if:
(a) the patient is the member’s spouse;and
(b) the member is not engaged in the practice of the profession at the time that any sexual conduct, behaviour or remark occurs.
On July 10, 2014, The Royal College of Dental Surgeons of Ontario became the first health college to submit and have approved a regulation under Bill 70, exempting dentists from the sexual abuse provisions of the RHPA when treating their spouses. Similar regulations are being considered by the Colleges of Chiropodists, Chiropractors, Dental Hygienists, Denturists, Optometrists, Pharmacists, Respiratory Therapists, and Traditional Chinese Medicine Practitioners and Acupuncturists. However, until such regulations have been passed, members of these professions who treat their spouses do so at their peril!
On the other hand, not all regulators are supportive of their members’ right to treat their spouses: Colleges governing physicians and psychologists have indicated that they will not be seeking a spousal exception pursuant to Bill 70, and there is currently no indication that Colleges other than those listed above will be seeking such exemption.
For more information about Colleges’ initiatives with respect to spousal exemptions from sexual abuse provisions of the Code, see:
College of Chiropodists of Ontario:
College of Chiropractors of Ontario: http://www.cco.on.ca/site_documents/Communique_Bill_70.pdf
College of Dental Hygienists of Ontario: http://www.cdho.org/home.asp
Royal College of Dental Surgeons of Ontario: http://www.rcdso.org/WhoWeAre/NewsandAlerts
College of Denturists of Ontario: http://www.denturists-cdo.com/document/1373/74th%20Council%20Highlights%20F.pdf
College of Medical Radiation Technologists of Ontario: http://www.cmrto.org/about/council-highlights.asp#items1
College of Optometrists of Ontario: http://www.collegeoptom.on.ca/index.php/resources/college-publications/document/278-proposed-regulation-spousal-exception
Ontario College of Pharmacists: http://www.savezvousque.ca/client/ocp/OCPHome.nsf/web/Council+Reports?OpenDocument&PFV
College of Respiratory Therapists of Ontario: http://www.crto.on.ca/pdf/Minutes/14-02-14_Minutes-public.pdf
College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario: http://www.ctcmpao.on.ca/Media/en/news/2014.04.16%20Notice%20to%20Members.pdf
The following Colleges have not communicated any intention to consider or submit a regulation exempting their members’ spouses from the sexual abuse provisions of the Code:
College of Audiologists and Speech-Language Pathologists
College of Dental Technologists of Ontario
College of Dieticians of Ontario
College of Homeopaths of Ontario
College of Kinesiologists of Ontario
College of Massage Therapists of Ontario
College of Medical Laboratory Technologists of Ontario
College of Physicians and Surgeons of Ontario
College of Midwives of Ontario
College of Naturopaths of Ontario
College of Nurses of Ontario
College of Occupational Therapists
College of Opticians of Ontario
College of Physiotherapists of Ontario
College of Psychologists of Ontario
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