Administrative law – Decisions of administrative tribunals – Chiropractors – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Sexual relations with patients – Spousal relationship – Treating family members – Statutory provisions – Penalties and Suspensions – Judicial review – Compliance with legislation – Evidence
Leering v. College of Chiropractors of Ontario,  O.J. No. 406, 2010 ONCA 87, Ontario Court of Appeal, February 2, 2010, K.N. Feldman, R.G. Juriansz and G.J. Epstein JJ.A.
The Respondent was a chiropractor and a member of the College of Chiropractors of Ontario. In December 2004, he met a woman with whom he began a personal relationship, which became a sexual relationship. They moved in together in about mid-March 2005. In April 2005, the Complainant switched chiropractors and commenced regular chiropractic treatments with the Respondent. She received 28 treatments between April and October 2005, both at the clinic and at home. He billed her, and although she did not pay, he marked her bills as paid and submitted them to her insurer for reimbursement. When she received the money from her insurer, she would pass it on to the Respondent. When their personal relationship ended in October 2005, the Respondent attempted to collect the balance owing for his chiropractic services of $567 from the complainant. When she refused to pay, he referred the account to a collection agency. When the complainant’s counsel was unable to resolve the account matter with the Respondent, she complained to the College. The College determined that the Respondent should be charged with sexual abuse.
The Health Professions Procedural Code prohibits health care professionals from having sexual intercourse with a patient. If they do, that is professional misconduct, defined as sexual abuse, and is punishable by mandatory revocation of the professional’s certificate of registration for a minimum of five years.
The College’s Discipline Committee Panel determined that the Complainant was the Respondent’s patient between April and October 2005. This was not disputed, nor was the fact that the Respondent and the Complainant were in a sexual relationship during the time when she was his patient. The Panel found the Respondent guilty and imposed the mandatory penalty.
The Divisional Court, on appeal, found that the Discipline Committee’s decision was unreasonable. It held that the Discipline Committee had failed to consider the pre-existing intimate relationship between the Respondent and the Complainant before she became a patient, and the College’s policies regarding the treatment of family members. The Divisional Court set aside the decision and the mandatory certificate revocation, and referred the matter back to the Discipline Committee for a new hearing.
The Court of Appeal found that the Divisional Court had erred in law, in proceeding to impose a further requirement in order to find sexual abuse beyond the concurrence of a chiropractor-patient and a sexual relationship. The disciplinary offence of sexual abuse is defined in the Code for the purpose of these proceedings as the concurrence of a sexual relationship and a health care professional-patient relationship. There is no further enquiry once those two factual determinations have been made.
There is some room for interpretation and application of the particular circumstances of a case and the Committee’s determination of the second issue, whether the Complainant was a patient of the chiropractor. Where incidental medical care or, for the purposes of this case, incidental chiropractic treatment is provided during the course of a spousal relationship, it is unlikely that the Discipline Committee will find that the spouse was a patient within the meaning of the Code. As the term “patient” is not defined in the Code, it is up to the discipline tribunal to apply its expertise in considering all the facts and circumstances in order to determine whether a complainant who was having a sexual relationship with a health care professional, including a spouse, was also a patient of that professional and in that context, whether any medical care that was provided was merely “incidental” medical care. The Court of Appeal concluded that medical care that is referred to as incidental is minor in nature, casual or arising in a fortuitous conjunction with the spousal relationship.
Finally, the Divisional Court had interchanged the concept of incidental medical treatment with incidental sexual activity. The issue was not whether the sexual activity was incidental to the professional relationship. The issue was whether the medical treatments were merely incidental to the spousal relationship and did not constitute the spouse as a patient, or whether they were of such a nature that the spouse was a patient within the meaning of the Code. The offence was complete when a doctor was in a sexual relationship with a patient, regardless of whether there was any power imbalance, and whether it was used in fact to obtain consent to sex.
Finally, the Court of Appeal did not agree with the Divisional Court that the Discipline Committee had erred by not referring to policies of the College relating to treating family members. To the contrary, the Discipline Committee made a specific finding that the Respondent was aware that the rules of professional conduct prohibited him from engaging in a sexual relationship with a patient.
In the result, the Court of Appeal allowed the appeal, set aside the decision of the Divisional Court and restored the decision of the Discipline Committee and the mandatory revocation of the certificate of the Respondent.
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