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CMLTO response to HPRAC regarding treatment of spouses by health care professionals

As one of more than 20 health professions granted self-regulation under the Regulated Health Professions Act, 1991 (RHPA), members of the College of Medical Laboratory Technologists of Ontario (CMLTO) are prohibited from engaging in sexual relationships with patients under the Act.

The Health Professions Regulatory Advisory Council (HPRAC), which provides independent policy advice to the Ontario Minister of Health and Long-Term Care on matters related to the regulation of health professions across the province, asked CMLTO and the other stakeholders for advice on the issue of mandatory revocation provisions and treatment of spouses by health care professionals.

The issue is whether or not, alternatives to the mandatory revocation provisions should exist in the RHPA respecting the treatment of a spouse by a regulated health professional.

A co-existing sexual and patient-professional relationship is considered professional misconduct, and is defined as sexual abuse. Certain frank forms of sexual abuse such as sexual intercourse are grounds for mandatory revocation for a minimum of 5 years. There is currently no exemption for spouses. In other words, if a health professional is found to be treating their spouse (with whom they inherently have established a sexual relationship), they too would be subject to the mandatory revocation provisions of the RHPA if they were found guilty of sexual abuse by a panel of the Discipline Committee.

Following are the questions posed by HPRAC and CMLTO’s responses.

1. In your view, should alternatives to the mandatory revocation provisions currently mandated in the RHPA with respect to the treatment of a spouse by a regulated health professional be considered? If yes, please propose appropriate alternatives.
Please explain the rationale for your position. You may include evidence and/or citations where applicable.

This referral stems from a concern raised by certain health professions after recent court decisions that have strictly interpreted the mandatory revocation provisions of the Regulated Health Professions Act (RHPA). The concern is that this interpretation means that any health professional who treats his or her spouse is by definition engaging in professional misconduct, which could result in a mandatory revocation of their certificate of registration. It has been suggested that there is, therefore, a need for an outright ban on health professionals treating their spouses. As a result, health professionals are re-examining their own practices and have raised concerns related to a patient’s right to choose their health professional and the realities of emergency and rural treatment situations.

The CMLTO is the regulatory body for medical laboratory technologists (MLTs) in Ontario who practise phlebotomy and perform investigations and tests on patient samples pursuant to an order. The CMLTO long ago adopted a philosophy of zero tolerance of sexual abuse of patients. This means that no act of sexual abuse, as defined by the RHPA, is ever acceptable and that sexual abuse must never be tolerated. At the same time, the CMLTO does not impose an outright ban on the treatment of spouses. In fact the CMLTO document, MLT Boundaries of Practice Guidebook (PDF), states that:

“MLTs should avoid, when possible, providing professional service when a significant relationship is present (e.g., testing spouse, parent, step-parent, guardian, brother, sister, first cousin, aunt, uncle, nephew, niece, grandparent, great grandparent, great uncle, great aunt, any adult who jointly resides in the same household, friends, co-workers, close neighbours...). When the situation cannot be avoided, the MLT should be particularly aware that a boundary crossing may occur. In such cases, it is important to note that there is a power imbalance in the relationship and the onus is on the MLT to maintain professional boundaries.”

The CMLTO recognizes that this guidance may not be appropriate for some professions and that there are other professions, like dentistry, where there is a long history of treating family members including spouses. The approach taken by each profession to the issue of the treatment of spouses will need to take into account the nature of treatment, the vulnerability of the patient and appropriate professional boundaries. 

The CMLTO does not believe that it is necessary to amend the provisions of the RHPA in any way as there is already a mechanism for dealing with issues of sexual abuse and the treatment of spouses which can accommodate the various perspectives of all the health professions regulated under it.

While mandatory penalties may bind the Discipline Committee in terms of penalties once a finding of frank sexual abuse of a patient has been made, we do not believe there is a need for a spousal exemption. Mandatory penalties provide certainty and clarity to the public and serve not only to underline the seriousness of the conduct but also support the zero tolerance philosophy. The concern, from a zero tolerance perspective, if alternatives to the mandatory revocation provisions are available where the patient is in a spousal relationship with the health professional, is that it is possible for abuse to take place within a spousal relationship. If there is abuse and the health professional can be shown to have violated professional boundaries and standards that conduct should be dealt with in the same strict manner regardless of whether the patient is a spouse.

MLTs treat their spouses on occasion. MLTs who perform phlebotomy may collect blood from family members, including their spouses. MLTs who conduct the investigation and testing on the samples can perform tests on their spouse’s sample without being aware it is their spouse’s sample since it may be identified using identifiers other than names. There are circumstances when it would be impossible to avoid treating a spouse, such as in emergencies and in rural and understaffed areas. We do not know whether community labs and hospitals have policies in place that restrict MLTs from performing phlebotomy or performing tests on samples from their spouses or other family members. In light of the fact that laboratory tests require an order from an authorized health professional, it is possible that this type of policy is not necessary. Where the lab test is elective, a bar on the treatment of spouses would inconvenience care; however, in emergency care situations such a bar could negatively impact patient care.

The CMLTO is of the view that the RHPA already has processes that can deal with the issue of the treatment of spouses which can accommodate the realities of all the health professions. The Inquiries, Complaints and Reports Committee (ICRC) at each College is the screening committee responsible for investigating all complaints. The Committee also considers all reports related to member conduct and fitness to practice. It is the only Committee with the authority to refer a matter to the Discipline Committee for a hearing. The CMLTO believes that the ICRC may be the most appropriate committee to weigh and consider issues related to the treatment of spouses and sexual abuse. In this way, the ICRC, when dealing with a complaint or report of sexual abuse, is able to consider the context of each case and the nature or concurrent relationship. As reference, the ICRC will have the College’s standards and guidelines related to the treatment of spouses.

The ICRC routinely deals with matters that are resolved in some way, short of a referral to the Discipline Committee; for example, by issuing a formal caution or requiring a member to undertake specified continuing education and remediation program. ICRC decisions regarding complaints are reviewable by the Health Professions Appeal and Review Board. Therefore there is already a built-in oversight and monitoring of decisions.

The CMLTO is of the view that by leaving the particulars and context of each case to be reviewed and weighed by the ICRC at each College, there would be no need to provide alternatives to the mandatory revocation provisions. Further, the zero-tolerance philosophy related to sexual abuse can be preserved without the need for an outright ban on the treatment of spouses.

2. If you find that there are appropriate alternatives to the mandatory
revocation provisions currently mandated in the RHPA with respect to the treatment of a spouse by a regulated health professional, in your view:
A. Do the alternatives pose a risk of harm to the public?
B. Do the alternatives best serve the public interest?
Please explain the rationale for your position. You may include evidence and/or citations where applicable.

The CMLTO does not believe that alternatives are necessary as the ICRC at each College already possesses the authority and discretion to deal with the issues raised by this referral. Once a matter is referred to Discipline and a finding of frank sexual abuse is made, the mandatory penalties should apply in all cases.  

3. Do you have any other comments about the issue of mandatory revocation provisions and treatment of spouses by regulated health professionals?

Not at this time.