A physician appealed a decision of the Divisional Court upholding the finding of the Discipline Committee of the College of Physicians and Surgeons of Ontario that he was guilty of sexual abuse of a patient. The Appellant argued that he ought to be exempted from the College’s zero tolerance policy regarding sexual relations with patients, on the basis that he had a “spousal” relationship with the patient. The Court dismissed the appeal, finding that the College’s decision met the standard of reasonableness.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and surgeons – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Sexual relations with patients – Statutory provisions – Spousal relationship – Mandatory suspensions – Judicial review – Standard of review – Reasonableness simpliciter

Dr. R.A.R.  v. College of Physicians and Surgeons of Ontario, [2006] O.J. No. 4380, Ontario Court of Appeal, November 2, 2006, K.N. Feldman, J.C. MacPherson and R.J. Sharpe JJ.A.

In 1992, the Appellant Physician commenced a sexual relationship with a woman who had been his patient since 1988. They began cohabiting in 1993 and planned to marry. During this time, the Appellant continued to treat the patient on a regular basis as her physician.

In 1994, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, (“RHPA”) introduced a new, zero tolerance/mandatory revocation regime for sexual abuse of patients by health care professionals. Notwithstanding the new regime, the Appellant continued a sexual relationship with the patient and also continued to treat her medically on a regular basis after 1994. The Appellant and his patient ceased living together in 1997 and, in 1998, ceased both their sexual and professional relationships.

The patient laid a complaint against the Appellant to the College in 1998. In 2003, the College’s Discipline Committee concluded that the zero tolerance/mandatory revocation regime under the RHPA applied, found the Appellant guilty of sexual abuse, and revoked his Certificate of Registration. The Divisional Court had dismissed his appeal. At the Court of Appeal, the Appellant argued that his relationship with the patient had become “spousal” in nature and that the zero tolerance/mandatory revocation regime should therefore not apply to his conduct.

The College’s Discipline Committee revoked the Appellant’s Certificate of Registration as required by s. 51(5)(2) of the RHPA, and added that even if revocation were not required by law, it regarded revocation as the only appropriate penalty in the circumstances. The Committee also ordered that the Appellant be reprimanded, that he reimburse the College for any money paid to provide therapy to the patient up to a maximum of $10,000, and that he pay costs in the amount of $10,000. The Appellant’s appeal to the Divisional Court was dismissed, which found that the appropriate standard of review was reasonableness and that the Discipline Committee had ample evidence on which to make its findings.

The Court of Appeal first considered whether the Divisional Court applied the appropriate standard of review to the decision of the Discipline Committee. The Court applied the pragmatic and functional approach and concluded that the Divisional Court had correctly assessed the appropriate standard of review as reasonableness simpliciter.

The Court of Appeal went on to consider whether it was reasonable for the Discipline Committee to conclude that zero tolerance/mandatory revocation provisions applied to the Appellant. A central difficulty with the Appellant’s argument was that the term “spouse” had no clear definition in law that could be applied universally to all situations. In this case, the nature and duration of the Appellant’s relationship with the patient made it unclear whether that relationship was “spousal”.

The lack of definition inherent in the term “spouse” made the exemption claim by the Appellant an uneasy fit with the clear-cut approach of the RHPA’s zero tolerance/mandatory revocation regime. Given its clear language and the nature of its underlying purpose, the RHPA leaves little room for interpretation when it comes to sexual relations between a physician and a patient. It was not unreasonable on the facts of this case for the Discipline Committee to decide that the legislation simply could not be interpreted in a manner that would exempt the Appellant from its reach.

To the extent that the legislation may leave some scope for finding that the regime does not apply to certain relationships, that would be a matter that necessarily involved professional ethical standards, which lies squarely within the expertise of the Discipline Committee. The Discipline Committee’s decision stood up to the somewhat probing examination mandated by the reasonableness simpliciter standard of review.

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