Case examined whether sexual contact fell under an exception and was thus permitted
The Alberta Court of King’s Bench stayed the suspension pending appeal of a pharmacist facing disciplinary proceedings in relation to having consensual sexual intercourse with a complainant.
Courts and legislatures have recognized the harmful effects on patients of sexual relationships, even if consensual, with their health care providers, given their trust in and sometimes vulnerability to these service providers, the court noted.
In this case, the applicant was a registered pharmacist in Alberta. He faced disciplinary proceedings with the Alberta College of Pharmacy. He had consensual sexual intercourse with the complainant, which allegedly amounted to sexual abuse under Alberta’s Health Professions Act, 2000 (HPA) and under the regulator’s standards of practice for sexual abuse and sexual misconduct.
At the merits hearing, a hearing tribunal suspended the applicant’s permit. It decided that he committed unprofessional conduct and that the instances of sexual intercourse were considered sexual abuse as defined in the HPA.
The applicant asked the regulator’s council to stay the mandatory suspension under s. 86 of the HPA and wanted to appeal the council’s merits decision under s. 87 of the HPA. The council’s appeal panel and stay committee found these matters premature until the hearing tribunal completed the sanctions phase.
In MA v Alberta College of Pharmacy, 2023 ABKB 522, the Alberta Court of King’s Bench stayed the suspension pending appeal to the council. The appeal panel wrongly found that the applicant had no right of appeal, while the stay committee improperly refused to consider his stay application, the court ruled.
The court determined that the hearings were bifurcated, that the legislature did not intend for there to be only one appeal in each discipline matter, and that an appeal lay from both the merits hearing and the sanction hearing.
Next, the court decided that it was proper to stay the suspension order. First, the court found sufficient grounds to meet the low threshold for the existence of a serious issue. The issue was whether the sexual contact in this case was permitted because it fell under the exception for episodic care in the standards of practice for sexual abuse and sexual misconduct.
The applicant claimed that he assisted the complainant with acute issues on a one-off basis on a few occasions when they could not see their doctor amid the onset of the COVID-19 pandemic.
The applicant said that he considered the boundaries imposed by the standards, thought that there was an existing sexual relationship, and periodically agreed to provide the complainant with only a limited professional service of an episodic nature, specifically on five occasions. Each service was allegedly unrelated to the others.
The hearing tribunal decided that a pharmacist could only provide such service one time, presumably only once per lifetime, and that the applicant did not meet the single encounter requirement in the standards.
This could be a problematic interpretation because the standards did not limit the number of occasions on which a pharmacist could provide episodic service but did limit the number of attendances in relation to a single service, the court said. This issue merited appellate review, the court concluded.
The court noted that the pandemic’s early months were a time of uncertainty and that people had reduced access to professional services due to the implementation of distance limitations, closures, and other public health measures.
Second, the court ruled that the applicant was suffering and would continue to suffer serious irreparable financial harm from the suspension if the stay was not granted. He was involved in an owner-operated pharmacy and was helping someone get another pharmacy off the ground.
He had business expenses to pay, had a seriously impaired ability to earn the necessary revenue, and had patients who felt uncertain about whether his inability to practice meant that the businesses would be closing.
Lastly, the court held that the balance of convenience favoured granting the stay, which would best accommodate the harm to the applicant and to the profession.
