Health Law Blog

Treating a spouse can be fraught with peril for health professionals

September 1, 2021

If you are in a regulated health discipline in Ontario, treating your spouse could lead to charges of professional misconduct. A recent dismissal of an appeal by a dental hygienist who had his registration revoked by the College of Dental Hygienists of Ontario shows the need for caution.

According to court documents, the male hygienist became friends with S.M. in 2012. She confided that she was afraid of dental treatment, but he gained her trust and provided her with dental cleaning at his workplace twice in 2013 when their relationship was platonic.

He rented a room in her house and they started a sexual relationship in mid-2014. Marriage followed and he stopped treating S.M. as a patient because he understood that was not permitted. However, in April 2015, a colleague told him the rules had changed. This advice was in error but he did not check.

In 2016, a complaint was made to the college and a discipline committee was convened. It found the hygienist guilt of professional misconduct – even though he was married to S.M. – and revoked his registration. Divisional Court dismissed the appellant’s appeal.

Describing the revocation of his registration as an “absurdity,” the hygienist asked the appeal court to “remedy this unfairness.” The court refused, noting that the “revocation of the appellant’s certificate of registration is an extremely serious penalty, but it is not absurd.”

The 2021 judgment explains that a “bright rule prohibiting sexual relationships” is better than having to evaluate each case “to determine whether discipline was warranted in particular circumstances. This decision … does not violate the Charter and there is no basis for this court to frustrate or interfere with its operation.”

It adds: “A finding of sexual abuse does not depend on establishing that a sexual relationship is inherently exploitive or otherwise wrongful; the prohibition of sexual relations between members and patients is categorical in nature. Sexual relationships with patients are prohibited, period, subject only to a spousal exception that may apply… the College of Dental Hygienists of Ontario has a regulation adopting the spousal exception, but that regulation did not come into force until October 2020, well after the occurrence of the events that are the focus of this appeal.”

Sexual abuse is defined broadly in the Regulated Health Professions Act to include any sexual relations between a regulated health professional in Ontario and a client. Members are guilty of professional misconduct under s. 51(1) of the Health Professions Procedural Code if they commit “sexual abuse” against a patient, which is defined as including “sexual intercourse or other forms of physical sexual relations between the member and the patient.”

Moreover, a finding that a regulated health professional has committed “sexual abuse” of a patient leads to the mandatory revocation of that professional’s license to practise their profession.

The College of Dental Hygienists of Ontario had proposed a “Spousal Exception Regulation” for members but the enabling regulation did not come into force until October 2020, well after the occurrence of the events that were the focus of this appeal.

In 2015, the Act was amended to provide each regulatory college the ability to make a regulation exempting the treatment of one’s spouse from that prohibition, as long as it was approved by the provincial government. Five years later, an exemption for spouses was granted to the dental college.

So what about other health professional regulators in Ontario? These regulators do not allow spouses as patients and members could face a charge of sexual abuse if they violate this rule: The College of Physicians and Surgeons in Ontario, The College of Kinesiologists and The College of Massage Therapists of Ontario.

Conversely, these health professional regulators allow spouses to be patients: The Royal College of Dental Surgeons and the College of Psychologists of Ontario.

The College of Nurses of Ontario recognizes that in some situations, such as in small communities, nurses may be required to care for a family member, friend or acquaintance, though it advises that members “must make every effort to ensure that alternative care arrangements are made.”

As a final note, the Canadian Medical Association’s Code of Ethics advises: “Limit treatment of yourself, your immediate family, or anyone with whom you have a similarly close relationship to minor or emergency interventions and only when another physician is not readily available.”

Wise words. As the dental hygienist found out, it is best to avoid having family members or spouses as clients. The financial savings they may enjoy by having you treat them is not worth the risk of losing your right to practice.


Tracey is an extraordinary person - and a lawyer of the first order. We named her as one of our inaugural Alumni of Distinction at the University of Western Ontario, Faculty of Law. I could not recommend her more highly!

Ian Holloway QC Dean and Professor of Law, The University of Western Ontario

Tracey Tremayne-Lloyd Health Law