Canada: Treating Spouses: A Shifting Landscape

There are currently 26 different regulated health professions in Ontario. Each profession has its own set of rules which dictate what will, and will not, be considered appropriate conduct for the members of that profession. However, there is one area in which the government has applied a primarily one size fits all regime: sex.

Under the Health Professions Procedural Code (the "Code"),1, any instance of "physical sexual relations" or "touching of a sexual nature" between a regulated health professional and a patient is defined as "sexual abuse"2 and, if the sexual act in question falls within a specific list of prohibited actions, will lead to the mandatory revocation of your license to practice3 This applies just as equally to opticians as it does to physicians, dentists, psychologists, etc. Critically, it does not matter if the patient consented to the sexual interaction, nor does it matter if the sexual interaction occurred while the member was not engaged in the practice of his/her profession.

In the case of Leering v. College of Chiropractors of Ontario,4 Dr. Leering, a chiropractor, was charged with sexual abuse for having engaged in sexual relations with a patient. Dr. Leering argued that his actions did not constitute "sexual abuse" as he and the patient had a personal relationship, and had begun co-habiting before Dr. Leering began giving her chiropractic treatments. Put another way, Dr. Leering attempted to argue that he could not have sexually abused his patient as the patient was his spouse. While this argument had some short lived success before the Divisional Court of Ontario, in 2010, the Court of Appeal for Ontario found that the offence of sexual abuse will have occurred even if there is a concurrence of a sexual relationship and a health care professional-patient relationship, and even if the sexual relationship commenced first. Simply put, the Court made it clear that any regulated health professional who treats their spouse and has a sexual relationship with their spouse will have committed "sexual abuse" as defined in the Code.

In 2013, partly in reaction to Leering, the Code was revised to give Council of each regulatory College the ability to create a spousal exemption to the definition of "sexual abuse"/5 Thus, the era of "one size fits all" sexual prohibition seems to be coming to an end – sort of. It is important to note that even if a spousal exemption is implemented by a particular College, the exemption will only apply to individuals who meet the legal definition of "spouses" – i.e. two persons who are married to each other or have lived together in a conjugal relationship continuously for at least three years.6 Individual Colleges do not have the authority to create broader exemptions to the definition of "sexual abuse".

At a meeting of the College of Opticians of Ontario ("CCO")'s Council in January of 2015, Council moved to implement a spousal exemption which would lift the ban on opticians treating their spouses. No proposed wording of the exemption has been released. However, once Council has received input from the Ministry of Health and Long-Term Care, it will be circulated for stakeholder feedback.7

In the meantime, the law governing opticians remains the same: opticians cannot engage in a concurrent sexual relationship and therapeutic relationship, even if the patient in question is his/her spouse. Moreover, even if/when a spousal exemption is implemented by the CCO, it will not apply to personal relationships which do not meet the legal definition of "spouse", and the treatment of such individuals will still carry what some consider to be amongst the harshest of penalties: the mandatory revocation of your license.

1. Schedule II to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
2. S. 1(3) of the Code.
3. S. 51(5) of the Code.
4. [2010] O.J. No. 406
5. S. 1(5) of the Code.
6. S. 1(6) of the Code; S. 1 of the Family Law Act, R.S.O. 1990, c. F.3.

Originally published in the: Ontario Opticians Association (OOA) Newsletter

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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