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Joseph Neuberger and Nick Whitfield
A criminal charge of sexual assault can be devastating to the career of a regulated health professional. Recently, the sexual abuse of patients in healthcare settings, though thankfully rare, has been subject to heightened public scrutiny after several high-profile cases. The work of doctors, chiropractors, massage- and physiotherapists, which commonly includes legitimate physical contact for diagnosis and treatment, is at particular risk of misinterpretation. Health professionals must take care to foster a sense of safety among their patients and to protect themselves and their staff against false accusations.
Familiarity with Regulatory Legislation and Policy Guidelines:
A licenced practitioner’s first step against a false allegation is strict adherence to the standards set out by their relevant regulatory body. Guidance is readily available. There are 27 regulated health professions in Ontario, each with published legislation and online policy guidelines for the appropriate care of patients and clients.
The College of Physicians and Surgeons of Ontario (CPSO), for instance, provides a detailed policy statement online, Maintaining Appropriate Boundaries, which includes direction on obtaining patient consent before an examination, and on the appropriate use of touch for comforting purposes. Likewise, a policy document published by the College of Chiropractors of Ontario (CCO), Maintaining Professional Boundaries, provides examples of boundary crossings and violations, and advises on the proper management of romantic advances by patients.
Many regulatory bodies, including the CCO and the Royal College of Dental Surgeons of Ontario (RCDSO), note that the Regulated Health Professions Act strictly forbids concurrent therapeutic and sexual relations between members and patients. (See, for instance, the RCDSO’s Practice Advisory: Prevention of Sexual Abuse and Boundary Violations.) There rule permits scant room for error. The Court of Appeal for Ontario in Tanase v College of Dental Hygienists of Ontario, 2021 ONCA 482 upheld the finding that a dentist had sexually abused his wife after administering several dental procedures, disagreed that his constitutional rights were violated, and refused to reinstate his licence. Mr. Tanase had wrongly believed in a more permissive regulation, an honest but costly mistake.
Though such brightline rules may seem overbearing, their policy rationales are longstanding and subject to strict enforcement. Health professionals should familiarise themselves with the legislation of their regulatory body, adhere to its rules assiduously, and cultivate a policy-informed practice with strict respect for professional boundaries. Crucially, they must understand that a demonstrated disregard for the rules of their profession, and any consequent disciplinary action, could complicate a defence in the event of a criminal charge.
Third-Party Presence at Examinations and Touch-Based Treatment
Procedural precautions can further abate the risk of false allegations. The gold standard is for a third party to attend all examinations and touch-based treatments. The benefit of a third-party presence is not only to reassure patients and clients by way of a visible deterrent against sexual misconduct, but to provide healthcare professionals with a witness in the event of a complaint.
Unfortunately, this measure is oftentimes unfeasible. A family physician, for instance, may run a busy practice and lack the resources to provide third parties, while physio- or massage therapists typically work one-on-one and again lack financing for additional staff. However, where possible, the presence of a third party during physical treatment is a particularly effective safeguard.
Obtain Written and Signed Consent
A second, more accessible precaution is to obtain signed and written informed consent in advance of any physical examination, procedure, or treatment. In some cases, written consent is mandatory. The College of Massage Therapists of Ontario, for instance, has published a Standard of Practice that requires members to obtain a client’s prior written consent for the treatment of sensitive areas.
Verbal communication is also prudent. Since unexplained physical procedures are ripe for mis-construal, licensed practitioners should take care to verbally communicate their actions both prior to and during physical contact. In Maintaining Appropriate Boundaries, the CPSO advises members to continually seek verbal consent and to explain what they are going to do and why.
Recordkeeping and Patient/Client Charts
Another accessible measure is recordkeeping. Detailed patient and client charts should meticulously record the treatments discussed, the information provided, any patients comments or decisions, and whether and how consent was obtained. Practitioners should promptly document any possible boundary violations, gathering statements of staff and witnesses, and making detailed written observations of the impugned event.
CCTV Surveillance of Public Areas
A final measure is to monitor all areas outside of the private treatment rooms via CCTV. For instance, the front desk and waiting area of a clinic, particularly if patients are brought there to debrief or schedule further appointments. Video recordings should be saved in perpetuity by an experienced IT service provider.
Summary: Stay Vigilant and Contact Experienced Counsel if Criminally Charged
There is no foolproof shield against false allegations of sexual misconduct. To avert misunderstandings, practitioners should familiarise themselves with the rules of their profession, and build a practice that includes detailed consent forms, patient charts, video surveillance, and, where possible, third-party chaperones.
In the event of police involvement for an allegation of sexual assault, assault or other alleged criminal conduct, time is of the essence. A health professional charged with a sexual offence against, and patient or client should secure all medical charts and signed consent forms, create a log of the alleged violation, and immediately contact a criminal lawyer experienced in the defence of sexual assault.
