Leering v College: Patients With Benefits
On February 2 the Ontario Court of Appeal (“ONCA”) rendered its decision in Leering v College of Chiropractors of Ontario, 2010 ONCA 87 [Leering], a professional ethics/discipline case concerning the stiff prohibition on sexual relations between medical professionals and their patients.
In December 2004, the appellant Vincent Leering, a chiropractor, commenced an intimate relationship with a woman. They began to co-habit in March 2005. In April 2005, this girlfriend of his sought chiropractic treatment from Leering. Leering had her sign an informed consent to treatment form, opened up a patient file for her, and filled out a patient entrance form. Between April and October 2005, Leering provided her with treatment on 28 occasions, both at home and at the clinic. Because she had insurance coverage for these treatments, Leering billed his girlfriend.
In October 2005, the couple broke up. Treatments ceased. Leering sent a bill for the approximately $600 balance owing. When she did not pay, he referred the account to a collection agency. The ex then complained to the College of Chiropractors of Ontario about (only) the bill. Alerted to the existence of a possible professional-patient sexual relationship, the College brought Leering before its Discipline Committee, which found that Leering had committed sexual abuse of a patient within the meaning of the Health Professons Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, SO 1991, c 18, and revoked his certificate of registration for a period of 5 years.
The operative provisions of the Code are:
Sexual abuse of a patient
1(3) In this Code,
“sexual abuse” of a patient by a member means,
(a) sexual intercourse or other forms of physical sexual relations between the member and the patient, …
51(1) A panel shall find that a member has committed an act of professional misconduct if,
(b.1) the member has sexually abused a patient; …
Orders relating to sexual abuse
51(5) If a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2):
1. Reprimand the member.
2. Revoke the member’s certificate of registration if the sexual abuse consisted of, or included, any of the following, …
i. sexual intercourse, …
Applications for reinstatement
72(1) A person whose certificate of registration has been revoked or suspended as a result of disciplinary or incapacity proceedings may apply in writing to the Registrar to have a new certificate issued or the suspension removed.
Time of application, sexual abuse cases
72(3) An application under subsection (1), in relation to a revocation for sexual abuse of a patient, shall not be made earlier than,
(a) five years after the date on which the certificate of registration was revoked;[Emphasis added]
The combined effect of these provisions is a harsh, zero-tolerance, mandatory penalty aimed at fighting exploitation by health professionals of the purported vulnerability and power imbalance that exists between them and their patients by virtue of their position: if a health professional has sex with a patient, then they are barred from practicing for 5 years. Because of this, “courts,” as Feldman J.A. for the unanimous ONCA wrote, “have struggled with the application of the section in circumstances that may appear not to fit the ordinary understanding of sexual abuse, such as where the patient is a spouse or in an intimate partnership with the health care professional.”
Before the Discipline Committee (whose decision the ONCA affirmed in this appeal), Leering argued that because the sexual relationship began before the complainant became the respondent’s patient, the zero tolerance/mandatory revocation policy should not apply; that other chiropractors and health care professionals were treating spouses or partners and not being disciplined; and, that because he was in an intimate relationship with the complainant before she became his patient, this was not a situation where she was vulnerable as a patient, nor was there a power imbalance between them in the circumstances. The Committee rejected all of these arguments.
In regards to the aforementioned “struggle with the application of the section in circumstances that may appear not to fit the ordinary understanding of sexual abuse”, courts have responded to the reasonably perceived egregiousness of deeming there to be sexual abuse in the case of subsequent treatment of a spouse/lover by tinkering with the definition of “patient.” Then J. for the Divisional Court in Mussani v College of Physicians and Surgeons of Ontario (2003), 64 OR (3d) 641, wrote:
152 … “Patient” is not defined in the RHPA. This means that Discipline Committees and the courts must interpret the meaning of “patient” in the context of determining whether sexual activity occurred in the professional-patient relationship. It seems highly unlikely that tribunals or courts would interpret this term as including a physician’s spouse. …
153 Interpreting “patient” for the purposes of s. 51(5)2 of the Code as including a spouse would be an unreasonable interpretation of the legislation. … It is far-fetched to characterize the intimate relationship between spouses as “sexual abuse” simply because a physician may have treated his or her spouse.
At the ONCA (see (2004), 74 OR (3d) 1 [Mussani]), Blair J.A. introduced the concept of “incidental medical care”:
102 I agree with the conclusion of [the court below.] … The fact that during the course of a marriage a physician may provide incidental medical care to his or her spouse is unlikely, in my view, to establish a physician/patient relationship which would attract the discipline procedures of the Code.
The case of Rosenberg v College of Physicians and Surgeons of Ontario (2006), 275 DLR (4th) 275 [Rosenberg], refined the law further by stating that “the question is not to be approached on the basis of any categorical exclusion of spouses, but on the basis of whether or not a physician-patient relationship has been established, recognizing that it is unlikely that a physician-patient relationship will be established between a physician and his or her spouse.”
In Rosenberg, the complainant had been a patient of the doctor for four years when they commenced a sexual relationship in 1992, prior to the enactment of zero-tolerance provisions, which took effect in 1994. By that time, they were living together and planned to marry. The doctor continued treating the complainant as a patient until 1998, when their personal relationship ended. The Committee found there to have been a physician-patient relationship and administered the penalty, which the reviewing court upheld. Here, the Committee followed that approach and found, based on the facts, that there had been professional-patient relationship between Leering and his girlfriend.
On judicial review, the Divisional Court (see VL v College of Chiropractors of Ontario (2008), 243 OAC 55) found the Committee’s decision to be unreasonable. The Court distinguished the cases of Mussani and Rosenberg from the present one on the basis it identified that the sexual relationship began before the doctor/patient relationship. While accepting that the girlfriend was a patient in the “clinical sense,” the Court found this not be determinative of whether there was sexual abuse in within the meaning of the Code.
The Court held that “[t]he zero tolerance/mandatory revocation provisions were meant to target sexual activity that arises after a professional-patient relationship has been established” and that the “concern about abused of power by the professional and tainted consent does not arise where the sexual relationship existed prior to the giving of medical treatment.” The Court found unreasonable the Committee’s interpretation of “incidental” from “incidental medical care” as a question of frequency and regularity of treatment, where instead it should have asked “whether subsequent sexual activity arose out of the spousal relationship or out of the professional-patient relationship.”
The Court of Appeal, in overturning the Divisional Court and restoring the decision of the Committee, wrote:
37 With great respect to the Divisional Court, in proceeding to impose a further requirement in order to find sexual abuse beyond the concurrence of a chiropractor-patient and a sexual relationship, the Divisional Court erred in law. The disciplinary offence of sexual abuse is defined in the Code for the purpose of these proceedings as the concurrence of a sexual relationship and a healthcare professional-patient relationship. There is no further inquiry once those two factual determinations have been made. [Emphasis added]
As far as the concept of “incidental medical care” goes, the ONCA held that the lower court misdirected itself in holding that in order to ultimately answer the question of whether medical treatment arose as result of or as an incident to the spousal relationship, the Committee would have to ask the question of whether sexual activity subsequent to a spousal relationship arose out of the spousal relationship or out of the professional-patient relationship; in the Court of Appeal’s view, this was an unfounded, erroneous conflation. Importantly, the ONCA made the following finding of mixed law and fact as to the word “incidental”:
42 … Two examples of “incidental medical care” might be where a doctor and her spouse are in an accident and the doctor provides on the spot emergency care to her spouse, or a chiropractor’s spouse suffers a muscle spasm and the chiropractor performs a manipulation in order to provide immediate relief. It would be unreasonable for a spouse to be denied treatment in such circumstances.
43 The Divisional Court criticised the discipline committee for using the frequency of treatment as an indication of whether the treatment was “incidental”. Although the word “incidental” is not defined in terms of the frequency of what may occur, where medical treatment is provided on a regular basis by appointment in office, and where payment is expected, it is most unlikely that such treatment would be considered “incidental.”
The Court of Appeal would thus draw the line between patienthood and non-patienthood at the “clinical” and the regular, while the Divisional Court would draw it precisely where the spousal relationship subsists. I would think the former to be correct, to be more, if not entirely, true to the plain meaning of “patient.” But then it is not so certain. Is it not the argument that these “clinical” factors are mere formalities in the face of the spousal relationship, and that, looking at the problem more deeply, the harm that the Code seeks to combat simply and clearly is not there in spousal relationship context?
And then there is, in my reading, the uncertainty lingering in the language of the jurisprudence, namely between “unlikely” (see quotes from Mussani and Rosenberg, above) and “incidental,” and in whether the latter word truly does supercede the former. This statutory divination is fraught with difficulties, with our ideas of statutorily “what is” often mixing up with “what should be,” as well as “what the legislature feels is” with “what we feel is.”
Instead of such judicial wrangling, the best solution for all would naturally be to amend the law. All of this, however, especially in light of the Court of Appeal’s overturning of what was really an errantly purposive ruling on the part of the Divisional Court, brings us to the point that, Leering is a case that aptly demonstrates what has called the “garbage in, garbage out” job of the judiciary.
With TheCourt.ca being a legal website, not a policy website, “joy,” “pleasure,” “approval”… experienced on the part of its commentators, such as yours truly, in the line of commentating, must only flow from and have to do with the fidelity that judges – the subjects of our critique – demonstrate to the law; and this includes fidelity to operationally idiotic laws such as the one at issue here, which, as the above use of quotation marks strives to convey, is in the end no cause for joy, pleasure, or approval at all.
One wonders whether the unanimous Divisional Court was gripped with a compassionate concern in respect of the Committee’s ruling, as the often obvious misdirection of the Court’s judgment might suggest (” … the Discipline Committee was required to consider the purpose of the legislation … [The] concern about abuse of power by the professional and tainted consent does not arise where the sexual relationship existed prior to the giving of medical treatment.” – The purpose of the legislation is first and foremost reflected in its text, and it is that text, not a court, that is the authority on where and when said “concern” arises or not).
Ultimately it is for the the courts uphold the law, as we may consider the Court of Appeal to have done here, and decide as the law would have it: in this case, for the “transgression” of treating his lover’s back-aches… Dr. Leering is now deprived of his livelihood for half a decade.