Update: Oct. 19, 2020:
Due to Ontario Regulation 566/20, which passed in Oct. 2020, the following policy is currently under review.
Revised: May 24, 2018
Introduction
The College of Optometrists of Ontario views any form of abuse of a patient, whether sexual or otherwise, as professional misconduct that will not be tolerated. The Regulated Health Professions Act, 1991 (RHPA) and the Health Professions Procedural Code (the Code) set out specific requirements for the manner in which the College deals with sexual abuse and provides severe sanctions for members who are found to have sexually abused a patient. This advisory sets out the legislated standards of conduct that are required of members and provides guidelines to assist members in preventing allegations of sexual impropriety.
Definition of Sexual Abuse
Sexual abuse is defined in the Code as:
- sexual intercourse or other forms of physical sexual relations between the member and the patient;
- touching, of a sexual nature, of the patient by the member; or
- behaviour or remarks of a sexual nature by the member towards the patient.
According to the Code, touching, behaviour or remarks of a clinical nature appropriate to the services provided are not considered to be touching of a “sexual nature.”
Discipline and Penalties
Because of the power differential in the optometrist/patient relationship, it is always the responsibility of the optometrist to maintain appropriate boundaries. Sexual activity between an optometrist and a patient, even if perceived as consensual by those involved, is by definition, considered to be sexual abuse and therefore, professional misconduct.
If a member is found to have committed an act of professional misconduct by sexually abusing a patient, sanctions imposed by a panel of the Discipline Committee may include any or all of the following:
- revoking the member’s certificate of registration;
- revoking the member’s certificate of registration;
- suspending the member’s certificate of registration for a specified period of time;
- imposing specified terms, conditions and limitations on the member’s certificate of registration for a specified or indefinite period of time;
- reprimanding the member;
- requiring the member to pay a fine of up to $35,000.
If the sexual abuse consisted of or included:
- sexual intercourse;
- sexual intercourse;
- genital to genital, genital to anal, oral to genital, or oral to anal contact;
- masturbation of the member by, or in the presence of, the patient;
- masturbation of the patient by the member;
- encouragement of the patient by the member to masturbate in the presence of the member;
- touching of a sexual nature of the patient’s genitals, anus, breasts or buttocks.
a panel of the Discipline Committee is required by the Code to:
- revoke, for a minimum of five years, the member’s certificate of registration; and reprimand the member.
In addition, the optometrist may be fined up to $35,000 and be required to reimburse the College for the cost of therapy and counselling provided for the sexually abused patient under a program established by the College.
Sexual Relations with Patients, Including Spouses
The word “patient,” as it relates to the Code’s sexual abuse provisions, has been expanded; a former patient will remain a “patient” for one year from when the person would otherwise cease to be considered a patient (i.e., when the optometrist last provided care to the patient).
Regulation under the RHPA establishes other criteria for defining a patient as it relates to the Code’s sexual abuse provisions. Without restricting the ordinary meaning of the word “patient,” an individual is a patient if there is a direct relationship/interaction between the individual and the optometrist and the optometrist has:
- issued billings or received health payments for a health care service; or
- issued billings or received health payments for a health care service; or
- contributed to a patient record/file for that individual; or
- received consent from the individual for health care services recommended by the optometrist; or
- prescribed a drug for which a prescription is needed, to that individual.
If any of the above interactions occur between an individual and an optometrist, then that individual is considered the optometrist’s patient, for the purposes of sexual abuse provisions. That induvial will also continue to be considered a patient for one year after the termination of the optometrist-patient relationship. Any sexual act that occurs during that time between the optometrist and the individual would result in the optometrist being subject to mandatory revocation.
Note that an individual is not a patient under these criteria when:
- emergency care is provided to a pre-existing sexual partner; and
- there is no reasonable opportunity to transfer care to another health care professional.
Because of the broad definition of sexual abuse in the RHPA, a social relationship with a current or former patient may be considered sexual abuse. There are different types of social engagements that may be considered “dating,” however sexual abuse occurs whenever a relationship with a patient involves behaviour or remarks of a sexual nature.
The best course of conduct for members is not to date any current or former patients. If an optometrist intends to date a patient, he or she must first terminate the patient/practitioner relationship by dismissing the patient in accordance with the Professional Misconduct Regulation and then wait the one-year period from that time. The College policy on Discontinuation of Service can be found here.
| The RHPA does not provide exemption from the sexual abuse provisions for a spouse who is also a patient. |
Prevention
Members need to be exceptionally careful in their interaction with patients to ensure that their behaviour is not misinterpreted. Suggestive comments, profanity or sexual jokes may be misunderstood and could lead to allegations of professional misconduct and sexual abuse. Optometrists should be aware of how their behaviour may be perceived by the patient as well as anyone who may observe or overhear the interaction.
Members should also be aware that patient expectations differ based on cultural background, religion, gender, age, and sexual orientation. Accordingly, a high level of respect and sensitivity is required to ensure that people of all backgrounds are treated with dignity.
The College advises all members to take a second look at their behaviour, be alert to the potential for allegations of sexual impropriety and, where necessary, change their behaviour.
The following advice is provided to assist members in preventing allegations of sexual impropriety or sexual abuse:
- Having a patient disrobe is never appropriate;
- Hugging and kissing is inappropriate and should never be initiated by the optometrist;
- Touching should only be used as clinically necessary to facilitate the optometric examination;
- Physical assistance may be required to facilitate patient positioning and head, eyelid or brow manipulation for ocular examination with proper explanation to the patient prior to implementation;
- Reclined patient positioning for examination may make a patient feel vulnerable;
- The reason for reclining the patient should be explained, and consent obtained;
- Comforting or reassuring a nervous or upset patient should be done with words rather than with touch;
- Appropriate touching for greeting purposes (such as shaking hands) or for assisting in the transfer of a patient (for example from a wheel chair to examination chair), may enhance the comfort of the patient; (however, optometrists should also be sensitive to patients who may be uncomfortable with societal touching, such as shaking hands;
- Face to face proximity, as is required in direct ophthalmoscopy, should be explained. Patient and optometrist’s comfort may be enhanced through the use of a face mask;
- Questioning and conversation must avoid references to sexual practices, thoughts, and orientation except where clinically necessary, as in cases of diagnosis and treatment of ocular manifestations of sexually transmitted disease;
- Do not comment on a patient’s appearance, clothing, or body unless clinically necessary;
- Do not tell jokes or stories of a sexual nature;
- Do not display material within the office that is sexual or suggestive, or may be offensive to patients or staff;
- Ensure that a member of the office staff or a third party is in attendance when services are performed within the optometry office outside of normal office hours.
If a patient initiates sexually inappropriate conversation or behaviour, this should be respectfully discouraged, and a record of the incident made. Having a staff member or third party in attendance throughout the examination may help prevent misunderstanding or accusation. If the patient persists in the inappropriate behaviour, the optometrist should end the optometrist/patient relationship by dismissing the patient.
Sexual Harassment of Office Staff
While not dealt with in the RHPA, any form of harassment of office staff, including professional associates, may lead to allegations of professional misconduct.
A staff member who has received assessment or treatment services from an optometrist is considered to be a patient for the purpose of applying the sexual abuse provisions of the RHPA.
Mandatory Reports
If, in the course of practising the profession, an optometrist forms reasonable grounds for believing that another regulated health professional has sexually abused a patient, the optometrist must make a report to the Registrar of the College of which the alleged abuser is a member. The report must be made within 30 days of obtaining such information and must contain the name of the reporter, the name of the alleged abuser, the details of the alleged abuse, and the name of the patient (but only if the patient consents in writing to the inclusion of his or her name in the report). An optometrist that fails to make a mandatory report of sexual abuse is subject to a serious fine up to $50,000.
Patient Funding for Therapy and Counselling
The College has set aside funds for the Patient Relations Fund. The legislation provides that patients who were sexually abused by their optometrist may apply for funding for therapy and counselling. This funding is available once it is alleged, in a complaint or report, that the individual while a patient of a current or former member of the College was sexually abused by that optometrist.
Approval for funding is based on an application by the victim of sexual abuse. Consideration of the application is by the Patient Relations Committee. The maximum amount that can be paid for therapy or counselling is fixed by the regulations under the RHPA at the equivalent of the OHIP-insured rate for 200 half-hour sessions with a psychiatrist.
The legislation allows the College to make regulations specifying alternative criteria for funding. The Council has not made any such regulations.