Mandatory Revocation Penalty in Sexual Abuse Cases Ruled Constitutional
By Fay Faraday
The Ontario Court of Appeal has upheld the “zero tolerance” approach that governs discipline for frank sexual conduct between health professionals and patients.
Under the Health Professions Procedural Code, where the Discipline Committee of a regulated health profession’s governing college finds that a health professional has engaged in certain specified acts of sexual conduct with a patient, the mandatory penalty is to revoke the health professional’s licence. The health professional cannot apply for reinstatement for five years.
Under the mandatory revocation provisions, the Discipline Committee has no discretion as to what penalty they can impose – the professional’s license much be revoked.
In Mussani v. College of Physicians and Surgeons of Ontario, it was argued that by eliminating any discretion that could be exercised by the Discipline Committee, the mandatory revocation provisions violated the Canadian Charter of Rights and Freedoms. Under the Code, the Discipline Committee has no discretion to consider whether the sexual relationship was in fact marked by a power imbalance that lends itself to abuse, whether the sexual relationship was in fact consensual or whether there are any other mitigating factors. removing any discretion, mandatory revocation can apply too broadly to fact situations that are not in fact abusive and
- violates the right to liberty and security of the person in a manner that did not accord with the principles of fundamental justice;
- constitutes cruel and unusual punishment or treatment; and
- violates the right to freedom of association.
It was also argued that the failure to define who is a patient and when relationship between a patient and professional ends created an unconstitutionally vague law.
The Court of Appeal’s decision, released 29 December 2004, dismissed each of these arguments and ruled that the mandatory revocation provisions are constitutional.
The proceeding with respect to Dr. Mussani arose in relation to a sexual relationship he had with A.K. over a 2 ½ year period. Dr. Mussani treated A.K. as her family physician and had also provided her with counselling and psychotherapy. Dr. Mussani and his wife and A.K. and her husband also knew each socially, were friends and vacationed together. Dr. Mussani continued to provide counselling and psychotherapy sessions for A.K. while the sexual relationship was ongoing and there was no evidence that he ever attempted to terminate the doctor-patient relationship. The Discipline Committee of the College and Physicians of Surgeons found that he had violated the sexual abuse provisions of the Code and imposed the penalty of mandatory revocation. The Discipline Committee further concluded that revocation was the appropriate sanction even if it had not been mandated by the Code. The Divisional Court upheld this ruling and Dr. Mussani appealed to the Court of Appeal.
The Court of Appeal stressed that the mandatory revocation regime was enacted following the 1991 final report of a Task Force established by the College of Physicians and Surgeons to make recommendations concerning what was then recognized to be an ineffective response by the College and Courts to the problem of sexual abuse of patients by doctors. The Task Force recommended a policy of zero tolerance together with mandatory revocation of a doctor’s license. These recommendations formed the basis for Bill 100 which enacted the mandatory revocation provisions in the Code which were at issue on the appeal. The Court emphasized that Bill 100 was the subject of wide-spread consultation amongst health professionals and that health care professional organizations, on the whole supported the zero tolerance approach.
The Court ruled that Charter does not protect the right to engage in the economic activity of an individual’s choice. There is no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession. As a result, the mandatory revocation of a health professional’s certificate affects an economic interest of the sort that is not protected by the Charter. While the Court ruled that this was sufficient to dispose of the appeal, it addressed the Charter arguments because of their importance to the twenty-one health professions that are governed by the Code.
The Court ruled that a certain amount of stress, anxiety and stigma inevitably arises in the context of disciplinary proceedings relating to sexual abuse. Accordingly, the stigma of being disciplined by the College for sexual abuse of a patient, the publicity associated with such a proceeding, the loss of privacy and the mandatory revocation of a doctor’s certificate do not violate a person’s security of the person contrary to the Charter.
The Court also ruled that the health professional’s right to liberty was not violated:
The parties and intervenors all concede that sexual relations between a health professional and his or her patient are unacceptable. In the context of a regulated health profession, then, the liberty interest cannot extend to the point of protecting a doctor’s right to decide to have sex with a current patient. There is no valid liberty interest, in that sense.
While it was generally accepted by all parties that the state has an interest in limiting the right of health professionals to engage in sexual relations with their patients, it was argued that the mandatory revocation provisions violated liberty and security under the Charter because they were too vague – they do not define who a patient is or when the doctor-patient relationship ends.
The Court rejected this argument. The Court ruled that doctors know who their patients are, by and large. While there may be difficulties in some individual circumstances in determining when the health professional-patient relationship has ended, an examination of the various disciplinary and court decisions demonstrates that such situations are capable of resolution under the Code.
Next it was argued that the mandatory revocation provisions violate liberty and security under the Charter because they are too broad – they apply to fact situations which do not in reality amount to abuse. It was argued that the provisions apply equally to fact situations in which there is no power imbalance, no exploitation and where there is actual consent.
The Court of Appeal also rejected this argument. The Court ruled that state protection against sexual abuse and sexual exploitation in general is a basic tenet of our legal system and this basic tenet is reflected in provisions which protect patients from sexual abuse or sexual exploitation by health practitioners.
The Court acknowledged that there are problems with zero tolerance/mandatory penalty regimes because they are rigid and can lead to results in individual cases that are harsh, extreme and even arguably unjust. However, the Court concluded that the mandatory revocation provisions were enacted in response to a recognized and growing problem of sexual abuse in the medical profession where discretionary sanctioning by discipline committees and courts had been found to be wanting.
The Court ruled that the fact that a consensual sexual relationship may be caught by the mandatory revocation provisions does not make the provisions unconstitutionally overbroad because “[t]he health professional need only terminate the treatment relationship to avoid the problem.”
The Court concluded that the mandatory revocation provisions are not overbroad in relation to the legislature’s objectives. Mandatory revocation
(a) signals the seriousness with which the sexual abuse of patients is to be taken;
(b) underscores the gravity of the breach of trust involved;
(c) emphasizes the considerable impact of the practitioner’s failure to meet his or her responsibility towards maintaining the integrity of the profession; and
(d) responds to the need to protect the public from the risk of recidivism by removing the practitioner from the practice for a minimum period of time.
The Court of Appeal made clear that its ruling applies to all regulated health professions governed by the Health Professions Procedural Code. While the mandatory revocation provisions may have had their genesis in the Task Force Report regarding physicians, Bill 100 had widespread input from the various health professions and notwithstanding the differences between professions, there was solid support for the zero tolerance principle of the legislation. Moreover, the Court concluded that “all of these professional relationships are characterized in some fashion by the opportunity to capitalize on practitioner-patient dynamics for the purpose of invading the patient’s sexual boundaries, if the practitioner is so minded.”
The Court also briefly ruled that the mandatory revocation provisions do not constitute cruel and unusual treatment or punishment under the Charter and do not violate freedom of association.