A physician (“Mussani”) found guilty of sexual abuse by the College of Physicians and Surgeons of Ontario (the “College”) challenged the constitutionality of the zero tolerance/mandatory revocation scheme governing discipline for specific acts of sexual conduct between health professionals and their patients under Ontario’s Health Professions Procedural Code (the “Code”). The Ontario Court of Appeal dismissed the appeal and upheld the Mandatory Revocation Provisions of the Code.

22. February 2005 0

Administrative law – Decisions of administrative tribunals – Judicial review – College of Physicians and Surgeons – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Sexual acts – Penalties – Mandatory suspensions – Constitutionality – Charter of Rights – Application to disciplinary proceedings

Mussani v. College of Physicians and Surgeons of Ontario, [2004] O.J. No. 5176, Ontario Court of Appeal, December 29, 2004, Armstrong, Blair and Juriansz JJ.A.

In 1993, the Ontario Legislature enacted a zero tolerance/mandatory revocation scheme governing discipline for sexual intercourse and other specified sexual acts between health professionals and their patients. The Mandatory Revocation Provisions of the Code required mandatory revocation of a health professional’s licence to practice where the health professional was found by the relevant discipline committee to have engaged in certain specified acts of sexual conduct with a patient. In such circumstances, the health professional could not apply for reinstatement for a period of five years.

Dr. Mussani began treating A.K. as her family physician in 1985. She was then a 23-year-old undergraduate student studying physiotherapy. A.K. confided in Mussani about difficulties in her marriage and Mussani provided both counselling and psychotherapy to her beginning in 1990. Over the years, Mussani and his wife and A.K. and her husband became friends. They began to socialize with one another. In December 1991, they vacationed together in Florida. During the month prior to the vacation, Mussani had seen A.K. seven times. Shortly after their return from vacation, Mussani and A.K. entered into a sexual relationship. In the summer of 1994, A.K. became pregnant and did not know whether Mussani or her husband was the father. Mussani referred her to an obstetrician for an abortion. In October 1994, A.K. terminated the relationship.

A discipline committee of the College found no evidence that Mussani ever attempted to end the doctor-patient relationship. The Committee found that Mussani had “clearly betrayed his patient’s faith in him by engaging in a prolonged sexual relationship with her” and held that he was guilty of sexual abuse. The penalty imposed was mandatory revocation of his certificate of registration. The Committee further concluded that revocation was the appropriate sanction even if it had not been mandated by the Code.

Mussani appealed the decision of the discipline committee to the Ontario Divisional Court. This appeal was dismissed. Mussani then launched a further appeal to the Court of Appeal seeking a declaration that the Mandatory Revocation Provisions violated sections 7 and 12 of the Canadian Charter of Rights and Freedom. Mussani further sought an order setting aside the judgment of the Divisional Court and the orders of the Committee to the extent that they contained a conviction for sexual abuse and substituting the penalty of reprimand for the penalty of revocation.

The court reviewed legislative fact evidence including the Final Report of the Task Force established by the College to make recommendations concerning the problem of sexual abuse of patients by doctors. This Report was released in 1991 and recommended a policy of zero tolerance together with mandatory revocation of a doctor’s licence as an appropriate means of dealing with the problem of sexual abuse of patients. A number of studies were reviewed in writing the Report, including a Canadian survey which found that 8% of Ontario women reported sexual harassment or abuse by doctors. On November 25, 1992, the Minister of Health introduced Bill 100, amending the regulated Health Professions Act to implement the Mandatory Revocation Provisions. Bill 100 was the subject of widespread consultation amongst the health professions. The amendments to the Code became effective on December 31, 1993. The court specifically noted that it was during this period of high profile discussion concerning the amendments to the Code that the affair between Mussani and A.K. took place.

The court addressed the preliminary issue of whether sections 7 and 12 of the Charter applied at all in the context of professional disciplinary proceedings as opposed to criminal or quasi-criminal proceedings. The court also addressed the preliminary issue of whether the Mandatory Revocation Provisions invoked only the sort of economic interests, including the right to practice a profession, that do not attract Charter protection. The court held that section 7 of the Charter, the right to liberty and security of a person, was not confined to the penal context and can extend beyond the sphere of criminal law, at least where there is state action which directly engages the justice system and its administration.

The court found that the weight of authority was such that there was no constitutional right to practice a profession unfettered by the applicable rules and standards which regulated the profession, citing a large number of authorities including Reference re Criminal Code, Sections 193 and 195.1(1)(c), [1990] 1 S.C.R. 1123 and Siemans v. Manitoba (Attorney General), [2003] 1 S.C.R. 6. The court held that as there was no constitutionally protected right to practice a profession and the mandatory revocation of a health professional’s certificate of registration in substance infringed an economic interest of the sort that was not protected by the Charter, Mussani’s appeal must be dismissed.

In light of the importance of the Charter arguments to the 21 health professions governed by the Code, the court went through the constitutional analysis of the Code provisions. After performing this analysis, the court indicated that, if necessary, it would have upheld the constitutionality of the Mandatory Revocation Provisions of the Code. The court also held that it would have upheld the sanction of revocation in the circumstances of Mussani’s case, even if it had concluded that the Code provisions were of no force and effect.

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