In recent years, law reform in Ontario and Alberta have responded to public concerns that health profession regulators were not sufficiently addressing complaints of sexual misconduct. Therefore, it is not surprising that the Health Professions and Occupations Act (Bill 36 – 2022) (the “HPOA”) provides for a significant number of provisions which address sexual misconduct that do not exist in the Health Professions Act (the “HPA”).
Sexual misconduct and sexual abuse: The HPA does not currently define “sexual misconduct” except to say that it is a form of professional misconduct (HPA s. 26). In contrast, the HPOA defines and uses two different terms in relation to sexual activity: sexual misconduct and sexual abuse. Either kind of act will constitute “an act of misconduct” (HPOA s. 11(1)(b)).
The definition of sexual misconduct covers an array of acts, including physical touching (and attempted physical touching) of a sexual nature with a patient or person (including sexual intercourse); acts of a sexual nature in a patient or person’s presence; harassment of a sexual nature; communications of a sexual nature; manipulating or exploiting a patient or person for sexual purposes; and using or attempting to use a relationship of trust or emotional connection to “abuse, manipulate, or exploit” a patient or person for sexual purposes (HPOA s. 8(1)).
The definition of “sexual misconduct” has three notable features.
- A catch-all category: The definition includes a “catch-all” all category which encompasses a registrant (now a “regulated health practitioner”) who “engages in any other activity of a sexual nature with or in relation to the patient or person, whether or not the activity occurs within the health service environment or in the course of providing health services.” In other words, sexual misconduct only requires activity of a sexual nature with a patient, whenever and wherever.
- Sexual abuse – sexual touching without consent: Conduct may be sexual misconduct even where the patient or person consents. But sexual touching or attempted sexual touching without the patient’s or person’s consent also constitutes an act of sexual abuse.
- A spouse exception: The definition of sexual misconduct includes an exception for some (but not all) kinds of acts of a sexual nature “if the patient or person is the regulated health practitioner’s spouse and that spouse consents to the act” (HPOA s. 8(2)). The exception does not cover manipulative or exploitive acts, harassment, is using a relationship of trust or emotional connection to “abuse, manipulate or exploit” for sexual purposes.
The spouse exception and its limits: The spousal exception addresses the controversial effects that would otherwise flow from a zero tolerance policy, as implemented in Ontario. For example, in Tanase v. College of Dental Surgeons of Ontario, 2021 ONCA 482, a college disciplined a dental hygienist who treated his partner in 2015 and 2016. While the registrant married his partner in 2016, the college’s spousal exception did not come into force until 2020. The Ontario Court of Appeal upheld an order revoking the licensee’s certificate of registration.
The HPOA defines a “spouse” as a person who (a) is married to another person, or (b) has lived with another person in a marriage-like relationship and has done so for a continuous period of at least 2 years. This notably means, however, that licensees cannot resort to the “spouse” exception where they are living with a patient in a marriage-like relationship, but they are not married, and cohabitation falls short of two years.
Mandatory bylaws: The HPOA requires that a board make bylaws respecting ethics standards, including bylaws for “(b) preventing and responding to sexual misconduct and sexual abuse”, and also “(c) prohibitions, limits and conditions on sexual relationships between licensees or former licensees and patients or former patients” (HPOA s. 70(2)(b) and (c)).
While most if not all colleges already have standards relating to sexual misconduct between registrants and current patients, this requirement may lead to new or revised standards that address (and possibly provide greater certainty) relating to when registrants may, or may not, enter relationships with former patients.
A duty to report: A licensee must report another licensee if they have reasonable grounds to believe the other licensee has committed an act of sexual misconduct or sexual abuse (HPOA s. 86). A similar duty applies to some non-licensees (HPOA s. 87).
The HPOA’s duty to report does not require any consent on the part of a patient. This contrasts with current HPA s. 32.4, where, if a registrant’s belief is based on information from a patient, the registrant must obtain the consent of the patient before making the report.
Sexual misconduct and sexual abuse during investigation and discipline: While a registrar generally has a power to make a summary dismissal order (HPOA s. 258) or a consent disposition (HPOA s. 158(2)), without referring a complaint to an inquiry committee (HPOA s. 122(3)), that power does not extended to a complaint that alleges an act of sexual abuse (HPOA s. 122(3)(a)).
Further, where a complaint alleges an act of sexual abuse, the complaint may not be disposed of by an order under Part 3 (Practice of Designated Health Professions), Division 14 (Summary Action or Disposition During Investigation) without written approval of a proposed order by the director of discipline (HPOA s. 154(1)).
Support services: The HPOA requires that a board make bylaws respecting programs for support services programs (to support a person to recover from or seek redress for sexual misconduct, sexual abuse or discrimination), or support worker programs (to provide support workers to assist persons receiving support) (HPOA s. 277). Eligibility for support requires, among other things, a complaint alleging that a regulated health practitioner committed an act of sexual misconduct, sexual abuse, or discrimination (HPOA s. 283). These are long-awaited changes to address the often-difficult situation of complainants who come forward to make complaints of sexual misconduct. These support services will hopefully remove barriers for complainants when participating in adversarial processes.
Disclosure of sensitive records: Finally, discipline hearings involving allegations of sexual misconduct or sexual abuse often involve respondents seeking sensitive documents from complainants, such as counselling records or mental health records. Production of such documents make hearing processes difficult for complainants. The HPOA requires, however, that a discipline panel consider if records are sensitive records (HPOA s. 188). The HPOA clarifies that relevance of a sensitive record is not made out by an assertion that the record relates to medical or psychiatric or mental health treatment, therapy or counselling that the complainant received; or that the record may reveal allegations that the complainant experienced an act of sexual misconduct or sexual abuse committed by someone else; or that the record relates to the person’s sexual reputation or sexual activity with any person (HPOA s. 189(f), (g) and (h)).
Lisa C. Fong, K.C. and Michael Ng