More   en français

Publications & Resources > The Standard > September 2004   

  Last modified August 27, 2004  

Zero tolerance does not violate constitutional rights, CNO tells court

Nurses and other regulated health professionals have no constitutional right to have sexual relationships with their clients, the College of Nurses of Ontario (CNO) told the Ontario Court of Appeal. Zero tolerance of sexual relationships between health professionals and clients is necessary and appropriate because there is always a serious risk of harm to clients, the College said in its presentation.

On June 24, CNO made its presentation at the appeal court case of Dr. A. Mussani, an Ontario physician who had his licence revoked after being found guilty by the College of Physicians and Surgeons of Ontario of sexual intercourse with a client.

Under the Regulated Health Professions Act, the penalty for health care practitioners who engage in frank sexual acts with clients is mandatory revocation, and members cannot apply for reinstatement for a five-year period. These are commonly known as the “zero tolerance” or “mandatory revocation” provisions.

Mussani is challenging the constitutionality of these provisions in the Ontario Court of Appeal, arguing that zero tolerance of sexual relationships is unconstitutional. Because of the seriousness of the subject, CNO asked to speak at the hearing.

“Our position was that there is no constitutional right for a health care practitioner to have sex with a patient,” says Linda Rothstein, the lawyer representing the College. “The legislature made a conscious decision for the mandatory revocation provisions to apply to all of the regulated health professions, and was right to do so, given the relationship based on trust between health care providers and patients.”

CNO, along with the Ontario Medical Association, the Attorney General of Ontario and the Ontario Nurses Association (ONA), was given intervenor status in the case. Intervenor status allows third parties that may be affected by the decision, but are not directly involved in the case, to make arguments to the Court.

“Intervenors can assist the court in understanding the implications of its decision beyond the narrow dispute between the parties,” says Rothstein.

“It gives the court a broader perspective on the issues. Intervenor status was granted to CNO so it could provide the court with the perspective of nurses and other health care providers, and to address the power imbalance inherent in such relationships.”

CNO has always endorsed zero tolerance for sexual abuse.

“Health care professionals are in a position of power when treating clients, and becoming involved in a sexual relationship always has a risk of harm to clients,” says Karen McGovern, RN, CNO’s Manager, Hearings.

“Even though no harm is intended, the nurse’s personal needs become part of the relationship, which impairs the professional duty to focus only on the client’s health care needs.

“Our Therapeutic Nurse-Client Relationship practice standard clearly states that sexual relationships with clients are prohibited. Unfortunately, the College still sees cases in which the client is hurt by a sexual relationship with a nurse.”

Mussani claimed that the mandatory revocation of a licence to practice following a finding of sexual abuse violated his rights under the Canadian Charter of Rights and Freedoms.

“Dr. Mussani argued that the provisions violated Section 7, his right to liberty or security of the person,” explains Rothstein.

“His position was that the mandatory revocation provisions infringed upon his ability to choose with whom to have an intimate relationship. He also argued that the mandatory revocation of his licence amounted to cruel and unusual punishment.”

CNO also disputed the position of the ONA, which argued that the power imbalance addressed by the legislation was developed in response to physicians, not other health care professionals.

“In our submission, the health professions community was unanimous in its view that all health care professionals should be prohibited from engaging in sexual relationships with patients,” explains Rothstein.

CNO will learn if and how its submission affected the outcome of this matter once the courts have made a decision. The decision will be included in a future issue of The Standard. More on this story appeared in The Standard, March 2004.

[top]