Introducing the New Sexual Abuse and Sexual Misconduct Standard of Practice: Who is a Patient?

  •   April 4, 2019

On March 15, 2019 Physiotherapy Alberta received Ministerial approval of the Sexual Abuse and Sexual Misconduct Standard of Practice. Both the Standard and all the provisions of Bill 21: An Act to Protect Patients come into force on April 1, 2019.

This Standard is unique for a couple of reasons:

  • While all Standards are sent to the Government of Alberta and other stakeholders for feedback, this is the first time that the Minister of Health has had the final say in what the Standard says and had the ability to approve or disapprove a Standard.
  • This is the first time that the duration of the patient-physiotherapist relationship has been defined.

At its core, the intent of Bill 21 is to prevent health professionals from using their position of power and authority to inappropriately engage in sexual activities with patients and to provide clear penalties if they do so. Some of the questions that naturally arise from these discussions include:

  • When is a patient a patient?
  • When does the patient-provider relationship end?
  • When do the provisions of Bill 21 cease to apply to a relationship between a health professional and a former patient?

The provisions of Bill 21 required that each College regulated under the Health Professions Act define the term patient for their profession. To be clear, both the term client (patient) and the concept of the therapeutic relationship were defined in the 2017 Standards of Practice. However, the Standards defined the client broadly, to mean a person or group receiving physiotherapy services. The definition of therapeutic relationship focused on the nature of the relationship between a physiotherapist and their client being one of trust and respect. Neither definition provided clarity on when an individual was a client or patient nor how long the therapeutic relationship was thought to last.

Bill 21 defines behaviours that may be discreditable in a personal relationship (e.g., sexual harassment such as objectionable remarks of a sexual nature), but which would result in a suspension of the physiotherapist’s practice permit if they occurred within a patient-provider relationship. The Bill also defines behaviours and actions that could potentially be part of a personal relationship (e.g., sexual intercourse), but which would be subject to a discipline sanction if they occurred within a patient-provider relationship.

Some of the behaviours and actions defined in Bill 21 would, if they occurred within the context of a patient-physiotherapist relationship, lead to a mandatory, lifetime revocation of a member’s registration; therefore, a clear definition of when a person is a patient is essential.

Fortunately, the Government of Alberta provided each College with the ability to establish their own definition of patient. This is a good thing as it enabled each College to reflect on the unique aspects of their own profession and the circumstances that their members face, and to develop a definition that reflects the realities of practice. In other jurisdictions this term has sometimes been defined by government, providing a one-size-fits-all definition that does not always reflect practice or the nature of a profession.

Physiotherapy Alberta has had the opportunity to review the proposed Standards of many Colleges as they have worked to address the requirements of Bill 21, and to participate in conversations with other regulators about how they plan to address this question. Some Colleges took the perspective that the power imbalance inherent in a therapeutic relationship and; therefore, the risk of entering a sexual relationship with a former patient was variable, and that several factors related to power and power imbalance would need to be considered when determining if an individual was still a patient for the purposes of the legislation. Other Colleges chose to identify a minimum period from when the last service was delivered to when a patient-provider relationship ends. Still others combined the two concepts, indicating that there was a minimum period but also that power imbalances between patient and provider may persist beyond that period, rendering actions and behaviours inappropriate and sanctionable even after the required period has elapsed in some situations.

Some Colleges identified that patient-provider relationships involving their members were of a very brief duration. Many Colleges opted for a one-year (365 day) period. Other Colleges identified that the relationship extended for several years from the last date of service. In a few cases, Colleges identified that it would never be appropriate for a member to enter a sexual relationship with a patient, even long after they had ceased to provide treatment to the patient. Colleges that identified long durations of patient-provider relationships or indicated that a sexual relationship would never be appropriate argued that a power imbalance between their members and patients would endure after certain interventions were completed (e.g., psychotherapy, treatment for addictions), due to the nature of the interventions.

When defining patient for our members, Physiotherapy Alberta considered many things:

  • Our members are professionals who abide by the Standards of Practice and Code of Ethical Conduct. Having clarity regarding what is and is not acceptable is important to members as it enables them to comply with the performance expectations. This clarity is also important to patients.
  • There is a power imbalance inherent in patient-physiotherapist relationships, due to the nature of the personal information we collect from patients, the interventions we perform, and the duration of many of these relationships.
  • While many patient-physiotherapist relationships span several days, weeks or even months, some of these relationships are episodic in nature, lasting for a single encounter only and with no expectation of an ongoing care relationship.   
  • Many physiotherapists provide physiotherapy services to their spouses.

Physiotherapy Alberta acknowledges that physiotherapists are in a position of power relative to their patients and that all physiotherapists should be mindful of this imbalance during their interactions with patients. However, we also acknowlege that many of the interventions that could lead to an enduring power imbalance are not part of physiotherapy practice (e.g., psychotherapy, treatment for addictions). Our perspective is that introducing the need to assess for the possibility of an enduring power imbalance adds an unnecessary grey area to these discussions and does not provide enough clarity to members or the public about whether a behaviour is or is not appropriate. For this reason, we opted to define the duration of the patient-provider relationship in terms of time only.

As stated in the Standard, “The therapeutic relationship extends from the time of initial professional contact between the physiotherapist and the patient until one year (365 days) from the date of the last documented physiotherapy service.”

In choosing this duration, we looked at the timelines established by similar legislation in Ontario, the only other Canadian jurisdiction to date to enact legislation similar to Bill 21. We also considered physiotherapy practice and the fact that many patient-physiotherapist relationships are of some duration. The thought being that a power imbalance would accumulate over time and that it would take some time for that imbalance to equalize or dissipate. The specified period also provides both patient and physiotherapist with time for sober second thought before entering into a sexual relationship. “Is this relationship really a good idea?”

The duration of the therapeutic relationship was included in the draft Standard which was circulated to members in December. Most Physiotherapy Alberta members who provided feedback on the draft Standard supported the 365-day duration of the therapeutic relationship. However, two concerns were noted, which Physiotherapy Alberta has addressed in the final Standard.

When it comes to the Sexual Abuse and Sexual Misconduct Standard of Practice, a person is not considered a patient if a “current sexual, spousal, or adult interdependent relationship exists between the individual and the physiotherapist at the time the physiotherapist provides physiotherapy services.” In other words, if you treat your spouse and proceed to have intercourse with them the next day, it would not be considered sexual abuse as defined in the Standard or Bill 21.

Physiotherapists who provide treatment to their spouse should be aware that the other Standards of Practice still apply to them and should carefully consider if they are complying with the expectations identified in the other Standards.  

Members also identified that while many patient-physiotherapist relationships last for several days, weeks or months, there are several instances where a physiotherapist may treat a patient only once, with no expectation of an ongoing care relationship on the part of either the patient or the physiotherapist. Examples include physiotherapists volunteering at sporting events, physiotherapists working in triage roles (e.g., emergency departments), or physiotherapists who deliver time limited interventions (e.g., within ambulatory care clinics or day surgery departments).

Physiotherapy Alberta acknowledges that in such circumstances it is unlikely that a power imbalance would develop and identified that it is feasible that a physiotherapist may encounter an individual treated in such a context several weeks or months later and not realize that they had provided physiotherapy services to them. For these reasons, Physiotherapy Alberta has added the following definition of episodic care to the Standard:

Episodic care refers to a single encounter with a patient focused on a presenting concern(s), where neither the physiotherapist nor patient have the expectation of an ongoing care relationship. The individual is considered a patient for the duration of the episode of care. A physiotherapist who engages in the type of activity described in the definition of sexual abuse or sexual misconduct while providing episodic care will be considered to have committed sexual abuse or sexual misconduct.

However, for the purposes of the sexual abuse and sexual misconduct provisions in the Health Professions Act, an individual is not considered a patient if:

  • The physiotherapist has provided episodic care to a patient where neither the physiotherapist nor the patient have the expectation of an ongoing care relationship,

AND

  • 48 hours have elapsed between the episode of care and the start of the sexual relationship or communication for the purpose of starting the sexual relationship.

Once again, physiotherapists who provide episodic care must be aware that even if the Sexual Abuse and Sexual Misconduct Standard of Practice does not apply to a specific situation, the other Standards of Practice still govern their practice.

Physiotherapy Alberta realizes that most physiotherapists do not have sexual relationships with current or former patients, and do not engage in the activities defined as sexual abuse or sexual misconduct in the legislation. However, some activities that physiotherapists engage in regularly, if not properly explained, could be misinterpreted as touching of “a sexual nature” by patients. There is also the potential for a member to make a comment or joke that they view as innocent, but which a patient may perceive to be consistent with the definition of sexual misconduct. The provisions of Bill 21 are significant, as are the potential penalties if a physiotherapist were found to have engaged in sexual abuse or sexual misconduct as defined by the legislation.

For these reasons, it is essential that every physiotherapist is aware of the legislation and related Standard. All members are urged to review the new Standard of Practice and to reflect, either on their own or with their co-workers:

  • Are there situations where you or your colleagues are providing episodic care?
  • Do you understand when an individual you have treated would be considered to still be your patient, even though you have not seen them for treatment recently?
  • Are there situations where you encounter patients, as defined by the Standard, in social situations? What steps might you take to mitigate any risks that such encounters may pose to you?
  • Are there clinical practices that you engage in that could be misinterpreted by a patient? What steps have you taken to ensure that the physiotherapy purpose of these activities is clear to the patient and that you have the patient’s consent to engage in the activity?