Physician loses appeal of “zero tolerance” rule
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* Laura Eggertson

*   © 2005 CMA Media Inc. or its licensors

The Ontario Court of Appeal has dismissed an appeal by a physician who lost his licence because he had a sexual relationship with one of his patients.

Dr. Anil Mussani, a primary care physician in Burlington, Ont., engaged in a relationship with a patient identified in court documents as A.K. The College of Physicians and Surgeons of Ontario found Mussani guilty of professional misconduct in December 1999 and revoked his licence.

Mussani challenged that decision before the Ontario Court of Justice, Divisional Court. When he lost that case, he appealed again.

The doctor argued that provisions of the Regulated Health Professions Act violate sections of the Charter of Rights and Freedoms because they require a “zero tolerance” policy that revokes the licence of a health professional who engages in sexual intercourse and other sexual activities with patients. Mussani contended that section 7 of the Charter granted him the “liberty” to chose a consensual sexual partner, and that the regulations prohibiting health care professionals from engaging in consensual sexual relations with patients violated his freedoms. The doctor also argued that revocation of his licence denied his right to engage in an economic activity of his choice.

Not so, said Justice Robert Blair, who wrote the argument dismissing the appeal. In his judgement, Blair restated the evidence from the earlier trial and agreed with his colleague on Divisional Court. Both quoted extensively from the 1991 Final Report of the College's Task Force on Sexual Abuse of Patients. The task force emphasized the power imbalance that exists between a physician and patient, undermining the conditions for a truly consensual relationship.

The judge emphasized that a health professional “need only terminate the treatment relationship” to avoid this problem. He also rejected the economic freedom argument that Mussani's lawyers advanced.

The decision now stands as strong case law, says Lorraine Ferris, an associate professor in public health sciences at the University of Toronto. “The take-home message from all this is that the [Act] has withstood a Charter challenge. If you want to engage in a sexual relationship with a patient, then you have to end the doctor–patient relationship.”

Mussani has not yet decided whether he will appeal the case to the Supreme Court of Canada, said his lawyer Jonathan Lisus.