If you are a health professional in Ontario, you most likely have heard of the recent case of Alexandru Tanase, whose dental hygienist license was revoked by the College of Dental Hygienists of Ontario (“College”). This decision was affirmed by the Ontario Divisional Court earlier this month in Tanase v. The College of Dental Hygienists of Ontario.

Why was Tanase’s license revoked? Because he had a consensual sexual relationship with his patient. The patient was his wife. Tanase has been listed as a sexual abuser on the College’s website.

If you are shocked and confused about this decision, you are not the only one. In its decision, the Divisional Court found it regrettable that the College had proceeded against Tanase in this fashion. Unfortunately, the Court’s hands were tied. To understand why we have to revisit the legislative framework that governs health professionals.

The Framework

Health professionals in Ontario are governed by the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“Act”), the Health Professions Procedural Code (“Code”), and their own College’s legislation, bylaws, and rules. 

One of the purposes of the Code is to regulate the conduct of health professionals in Ontario and to prevent abuse in the context of a patient-client relationship, including sexual abuse. This is very obviously a good goal and it is very important to take all steps necessary to prevent any kind of abuse or exploitation in this kind of protected relationship.

Unfortunately, as will be discussed below, the way that the Code defines “sexual abuse” is all-encompassing and has resulted in unfortunate situations, like Tanase’s case.

Sexual abuse is governed by section 1(3) of the Code:  

(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,

(b) touching, of a sexual nature, of the patient by the member, or

(c) behaviour or remarks of a sexual nature by the member towards the patient. 

This is a blanket provision with a zero-tolerance policy. In Ontario, if you are a health professional and have a sexual relationship of whatever nature with your patient, there are grounds for disciplinary action to be taken against you. It does not matter if the patient has consented, whether there was a pre-existing sexual relationship prior to your provision of health services, or even if you are married to the patient.

Fortunately, in 2013, an amendment was made to the Code to acknowledge that the rule had unintended consequences. A limited spousal exception was introduced under section 1(5):

(5) If the Council has made a regulation under clause 95 (1), conduct, behaviour or remarks that would otherwise constitute sexual abuse of a patient by a member under the definition of “sexual abuse” in subsection (3) do not constitute 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 the conduct, behaviour or remark occurs.

Notably, your professional College must pass a regulation in order for the spousal exception to apply. It is not automatic.

Failure to comply with the provisions of the Code can result in disciplinary proceedings, which process is out of the scope of this post. It is important to note, however, that the result of any proceedings can be devastating to a health professional’s career. It can include the publication of any findings of misconduct on the professional college’s website, conditions on your practice, or even the complete revocation of your license. 

The Tanase Decision

Several Ontario colleges have passed regulations respecting the spousal exception, including the Royal College of Dental Surgeons of Ontario. 

The College of Dental Hygienists, however, is not one of them. While the College has passed a regulation applying the spousal exception to dental hygienists, this regulation has not received royal assent. Therefore, it is not law.

Unfortunately for Tanase, he was not aware that the regulation was not law and that the blanket provision applied to him. All Tanase was aware of was that his wife needed dental care: she had a fear of dentists and had not received dental treatment for years before she met him.

Another hygienist learned of Tanase’s actions and launched a complaint with the College. The College decided to investigate and found at a disciplinary hearing that Tanase had failed to comply with the Code. Unfortunately for Tanase, on appeal, the Divisional Court could not find any grounds to reverse the College’s decision – the College was entitled to come to the decision it did, despite Tanase’s wife having consented to the sexual relationship with Tanase.

While this decision may seem shocking, this is not the first time courts seen a case like this. In R.A.R. v. College of Physicians and Surgeons of Ontario, the Court of Appeal had the following to say at para. 25:

…The legislation, like the Task Force recommendations, is clear and unambiguous: when it comes to sexual relations between a doctor and a patient, there is a black letter, bright line prohibition with a drastic sanction and no exceptions or exemptions.  The zero tolerance policy precludes inquiry into any explanation or excuse for the sexual activity.  A patient’s consent is irrelevant.

The Court’s position here is clear. Regardless of any potential unintended consequences of the legislation, you as the health professional are responsible for determining the limits of your license.

At Mills & Mills LLP, our health lawyers regularly work with regulated health care professionals facing disciplinary proceedings and malpractice litigation. To learn more about how we may be able to assist you please reach out to us online or by telephone at (416) 863-0125.

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