The Appellant chiropractor appealed a decision of the discipline committee of the Respondent College, which had found him guilty of professional misconduct because he had sexually abused a patient. The Court allowed the appeal, finding that the committee’s failure to consider the Appellant’s pre-existing intimate relationship with the alleged victim, before she became a patient, or to consider the College’s policies regarding treatment of family members, rendered its decision unreasonable.

Administrative law – Decisions of administrative tribunals – College of Chiropractors – Chiropractors – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Sexual relations with patient – Spousal relationship – Treating family members – Judicial review – Evidence – Standard of review – Reasonableness simpliciter

Leering v. College of Chiropractors of Ontario, [2008] O.J. No. 4375, Ontario Superior Court of Justice, November 4, 2008, J. D. Carnwath, K. E. Swinton and T. D. Ray JJ.

The Appellant was a chiropractor and a member of the Respondent College. In late December 2004, he commenced a personal relationship with a woman whom he had met through an internet dating service. Shortly thereafter, they commenced a sexual relationship and began cohabiting in about mid-March, 2005.

The woman sought chiropractic treatment from the Appellant, for the first time, on or about April 8, 2005. The Appellant had her sign an informed consent to treatment form, opened a patient file for her, filling out a patient entrance form, and provided her with treatment on 28 occasions. Because the woman had insurance coverage for her treatments, the Appellant began to bill her, so that payment could be made through her insurer.

The personal relationship, along with the chiropractic treatments, ended in mid-October, 2005. The Appellant sent the woman a bill for an amount in excess of $600 and, when she did not pay, sent the account to a collections agency. This prompted the woman to make a complaint to the College on the basis that the bill was invalid, alleging that there had never been any indication from the Appellant that she would be billed for the adjustments.

Although the woman made no allegation of sexual abuse, the College charged the Appellant with sexual abuse of a patient, as well as a number of charges relating to the billing of his services. The Appellant pleaded guilty to the latter charges. Following a hearing, the College’s discipline committee concluded that the Appellant had sexually abused the woman, a patient, and thereby committed professional misconduct. The committee imposed the penalty of mandatory revocation of the Appellant’s certificate of registration.

On appeal, the issue before the Court was whether the discipline committee had reached an unreasonable decision in finding that the Appellant sexually abused a patient. The standard of review of a decision of the committee applying the sexual abuse provisions of the Health Professions Procedural Code is reasonableness.

The Court noted that the sexual relationship between the Appellant and the woman began well before she had become a patient. There were no other reported cases dealing with this fact situation.

There was ample evidence before the committee to lead to the conclusion that the woman was a patient in the clinical sense. However, that did not determine whether there was sexual abuse of a patient within the meaning of the Code. To determine that question, the committee was required to consider the purpose of the legislation and the jurisprudence from the Court of Appeal, as well as the facts of this particular case.

The committee focused on whether there was concurrent sexual activity and a chiropractor-patient relationship. That is the proper form of analysis when a member of a regulated health profession, such as a chiropractor, begins a sexual relationship with someone who is, at that time, a patient. However, the fact that a health professional treats his or her spouse, while continuing in a sexual relationship, should not automatically trigger a finding of sexual abuse under the Code. The Court of Appeal had indicated that it would be unlikely that a practitioner would be guilty of sexual abuse if he or she, during the course of marriage, provided incidental treatment to his or her spouse. References to “incidental” medical care of a spouse in jurisprudence from the Court of Appeal encompassed care arising from or as an incident to the spousal relationship. The concern is not the regularity or frequency of the medical treatment, but whether the medical treatment arose as a result of or as an incident to the spousal relationship. Thus, where there has been a spousal relationship, including a common-law one, and medical treatment is subsequently provided to the spouse or intimate partner, a Discipline Committee must ask whether subsequent sexual activity arose out of the spousal relationship or out of the professional-patient relationship. In this case, the committee failed to do so and, as a result, it reached an unreasonable decision.

In the result, the appeal was allowed and the decision of the discipline committee referred back for a new hearing.

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