Discipline Case Summary
The following is a summary of a discipline case heard by a five member panel of the Discipline Committee of the College of Physiotherapists of Ontario on June 25, 26, 27, November 13, 14, 17, 18, December 11, 1997 and February 2, 1998.
Allegations
- Ms. Beverley Melunsky is a physiotherapist working at a facility in Toronto, Ontario.
- Ms. Melunsky treated a patient, Mr. M., from about October 31, 1995 to about March 12, 1996.
- While treating Mr. M., Ms. Melunsky entered into a personal and sexual relationship with him, which included sexual intercourse.
- The conduct alleged above constitutes professional misconduct as defined in clause 51(1)(b.1) (sexually abused a patient) of the Health Professions Procedural Code, which is Schedule 2 of the Regulated Health Professions Act, and paragraph 2 (failing to maintain standards), 8 (conflict of interest), and 25 (unprofessional conduct) of Section 1 of Ontario Regulation 861/93.
- The conduct alleged above also constitutes incompetence as defined in Section 52 of the Health Professions Procedural Code.
Background Information
Mr. M. became a patient of the member's on or about October 31, 1995 and was discharged from treatment on or about March 12, 1996. In March 1996, the College received a letter of complaint from Ms. B-M. about the member's conduct. Ms. B-M. alleged that the member's conduct was unprofessional, as she had entered into a personal relationship with a patient. The College appointed an investigator who met with the member, Mr. M. and Ms. B-M. Upon receiving the results of the investigation, the Complaints Committee referred the matter to the Discipline Committee for a hearing.
The panel's findings related to allegation #3, that the member entered into a personal relationship with Mr. M., which included sexual intercourse.
By agreement of counsel, the panel was first asked to make a factual finding about whether the member and her patient had a personal relationship including sexual intercourse prior to the termination of treatment.
The panel heard from one witness, the College investigator. The witness testified that her investigation produced evidence that a personal relationship developed early in 1996 and led to Mr. M. and the member establishing a sexual relationship by mid-February, 1996.
Finding
The panel made the following finding:
After considering all the evidence and arguments and having regard to the standard of proof required, the panel is satisfied that sexual intercourse did take place prior to the termination of the professional relationship.
Having determined that sexual intercourse took place between the member and the patient prior to the termination of treatment, the panel went on to hear evidence and argument concerning whether the conduct constituted professional misconduct within Section 51(1)(b.1) (sexual abuse of a patient) of the Health Professions Procedural Code, and whether the mandatory revocation provision required by Section 51(5)(2.i) violated the Charter of Rights.
Dr. R. was accepted as an expert witness and gave testimony via videotape on boundary violations and the impact on patients of establishing personal and sexual relationships with practitioners. Dr. R. testified that there is a power imbalance between the physiotherapist and his or her patient. Patients are in a very vulnerable position as they place their trust in the physiotherapist from whom they have sought treatment.
Mr. M. testified that he understood that relationships between patients and health care practitioners are wrong. However, he felt his relationship with Ms. Melunsky was of a very positive nature and he noted that they had married in October, 1997.
The testimony of the member was consistent with the evidence of the College investigator and Mr. M. relating to the chronology of events. The member, when questioned about her knowledge of the legislation related to sexual abuse of patients, stated that she was aware of the regulation banning relationships with current patients. The member stated that she did not agree with this regulation as in her opinion, voluntary personal relationships with patients are acceptable. The member admitted that although her relationship with Mr. M. while he was a patient was not a good idea, it was a consensual relationship and no one had been abused.
Character witnesses on behalf of the member testified as to her professional manner and dedication as a physiotherapist.
The panel was asked to rule on whether the actions of the member constituted sexual abuse of a patient as defined in Section 1(3) of the Health Professions Procedural Code.
The panel found that it had been proved that sexual intercourse between the member and the patient had taken place prior to the termination of the therapeutic relationship. This falls within the definition of sexual abuse in Section (1)(3)(a) of the Health Professions Procedural Code.
Legal arguments were made concerning the applicability in this case of the definition of sexual abuse and the requirement under Section 51(5)(2.i) for mandatory revocation of a member's certification of registration if they were found guilty of sexual abuse. Defence counsel argued that the mandatory penalty violated the member's rights under the Charter, specifically Section 12 (cruel and unusual punishment), Section 7 (life, liberty and security of the person), and Section 2(d) (freedom of association).
Finding—Majority Position
With respect to Section 12 (cruel and unusual punishment), the majority of the panel was of the opinion that the imposition of the mandatory penalty of five years revocation is cruel and unusual punishment in these circumstances. The panel did not comment on Section 7 or Section 2(d) of the Charter.
The panel then went on to consider whether Section 1 of the Charter, the proviso that the rights and freedoms are guaranteed subject only to such reasonable limits prescribed by law, saved the mandatory penalty provision. It was the opinion of the majority of the panel that in this unique case, the proportionality of the penalty, a mandatory revocation of the member's certificate of registration for a minimum of five years, did not fit the magnitude of the offence and accordingly constituted cruel and unusual punishment. Accordingly, while the member was found guilty of professional misconduct for having breached Section 51(1)(b.1) of the Health Professions Procedural Code, the majority of the panel were of the opinion that the mandatory penalty under Section 51(5)(2.i.) (revocation of licence) for a minimum of five years could not be invoked by reason of the Charter of Rights.
Minority Position
The minority agreed with the reasons for decision of the majority of the panel up to the question of whether Section 12 of the Charter of Rights and Freedoms is offended by Section 51(5)(2.i.) of the Health Professions Procedural Code. The minority believed that the act of sexual intercourse with a patient is of utmost concern and that the intent of the legislation is to send a clear message to the profession and society at large that there is zero tolerance of sexual intercourse with a patient. For these reasons, the minority would have imposed the mandatory license revocation set out in Section 51(5)(2.i) of the Health Professions Procedural Code.
Penalty and Reasons for Penalty
The panel stated in their reasons that they believe that the message conveyed to the profession and the public is of utmost importance. The member has been found guilty of sexual abuse of a patient while under her care. The fact that this patient is now her husband was, in the opinion of the panel, irrelevant. This action cannot be condoned, therefore, the panel made the following order:
- That the member's certificate of registration should be suspended for a period of six months commencing immediately
- That the member appear before the Committee for a reprimand
Costs
With respect to the ordering of costs, the panel, after consideration, decided that, as this was an unprecedented case because of the Charter of Rights arguments that no awards of costs would be made.
Divisional Court Appeal
The member appealed the Discipline Committee's decision with respect to the finding and penalty to the Divisional Court. The appeal was heard in January, 1999. The panel upheld the finding of professional misconduct but set aside the Discipline Committee's decision as to penalty. The penalty was reduced to an oral reprimand.
Appeal to the Court of Appeal of Ontario
The College requested permission to appeal the Divisional Court's decision on penalty to the Court of Appeal. In April, 1999, the College was advised that the Court would not hear the appeal.