Protecting the safety of women should take priority when there is an accusation of sexual misconduct in the health profession, the British Columbia Court of Appeal has ruled.
In the case, the complainant alleged that her massage therapist engaged in sexual misconduct during a massage therapy session.
The College Of Massage Therapists of British Columbia received a complaint on Oct. 8, 2014 from a female patient who alleged that Trevor James Scott, a massage therapist, had masturbated and put his penis on her left wrist during a session. The patient did not make any complaint to Scott and did not say anything about the incident to him or anyone else at the clinic.
The patient did go to police immediately after her massage therapy session and told them she heard him unzip his pants and “play with his penis” while massaging her with his other hand. She said he unzipped his pants a second time and put what she believed to be his penis on her wrist.
She told police she did not want charges — she simply wished to have the complaint on file in the event that future complaints were received. The police took no action but on Oct. 10 sent a report to the College of Massage Therapists Inquiry Committee.
Scott denied any sexual misconduct, said he had no criminal record for sexual assault and no previous complaint history. He sought reconsideration.
The committee conducted an ex parte hearing and found the alleged conduct to be “extremely serious” and identified a “lack of measures” to protect the public.
After identifying a risk to public safety, the College of Massage Therapists of British Columbia placed interim restrictions on Scott’s practice pending a full disciplinary hearing.
The B.C. Supreme Court later set aside those interim restrictions, saying that it was unreasonable for the College to have found a risk to the public based only on the complainant’s report of what took place. The College then appealed that decision to the BCCA, and the case was heard in January.
The Court was called upon to determine how governing bodies of health-care professionals should respond to such allegations in order to protect the public.
West Coast Women’s Legal Education & Action Fund intervened in the case to argue that women’s allegations of sexual misconduct must be taken seriously and require urgent action to protect the safety of patients while a complaint is under review.
“We are pleased that the Court found that women’s allegations of sexual misconduct must be taken seriously,” says Raji Mangat, director of litigation for West Coast LEAF. “Women are disproportionately the victims of sexual assault. Therefore, allowing the bodies we trust to govern health-care professions to place interim restrictions on health-care practitioners while an investigation is conducted is the best way to protect women and ensure equal and safe access to health care.
“In our view, the interests of women and other vulnerable people being able to access health care safely and not feel potentially some risk of something happening is greater than this interim period of time allowing this individual to practise without conditions,” says Mangat.
Mangat says there were “some troubling elements” of the B.C. Supreme Court judgment around what corroboration would be required for determining instances when the interim conditions could be put on a massage therapist’s practice, as well as “antiquated ideas” around what is an ideal response to sexual misconduct.
The implications of the case go beyond the College of Massage Therapists, as the case clarifies the standard of evidence required for many health professions’ governing bodies to act quickly in the public interest.
The Court of Appeal found that in order to impose interim conditions on a massage therapist who is subject to a complaint, the Inquiries Committee has to conclude that there was a prima facie case to support the allegation and an interim order is required to protect the public.
The Court of Appeal also confirmed that the Inquiries Committee is not to conduct a mini-trial to weigh the evidence, but the registrant may give evidence that the allegation is “manifestly unfounded or manifestly exaggerated” and to the impact of the interim order on the registrant.
The case creates a “very high threshold” for regulated health professionals seeking to challenge a proposed interim suspension or interim conditions, in the face of a complaint alleging serious misconduct, such as sexual abuse, says Lad Kucis, partner and co-chairman of the health law group with Gardiner Roberts LLP in Toronto.
“In such circumstances, the regulated health professional has to demonstrate that the complaint is ‘manifestly unfounded or manifestly exaggerated’, which in most instances, would be extremely difficult to accomplish,” he says.
“Although the Court of Appeal states that an interim order is to be used only in extraordinary cases, significant discretion is given to the Inquiries Committee in making the determination, which if exercised, is almost impossible for a health professional to challenge,” he says.
Mangat says there is a balance that has to occur in cases like this.
“The court also said if the inquiry committee gets evidence from the individual that the complaint is manifestly unfounded or exaggerated, they can take that account as well,” she says. “That puts a check on things if you think it’s going to open some sort of floodgate. We know sexual misconduct is vastly underreported, so we don’t think it’s a founded concern, but there is recognition in this decision that there are significant consequences for the health-care professional as well.”
Scott's formal disciplinary hearing is in process and is expected to finish this month. The Court remitted the issue to go back to the inquiry committee to decide how they would like to proceed in light of the passage of time since the complaint was first flagged and the conditions imposed.