TORONTO — A pharmacist whose licence was automatically revoked because he had consensual sex with a patient has lost his bid to have the relevant rules governing health professionals thrown out as unconstitutional.
In its written decision released this week, Ontario's top court rejected arguments from Mohamed Hanif that provisions of the province's Health Professions Procedural Code regulate morality and therefore stray into federal territory.
"Treating a patient while involved in a sexual relationship undermines the integrity of the professional-patient relationship," the Appeal Court ruled. "The intended, and in fact overwhelming, effect of the provisions is to protect the public."
Hanif, who was a pharmacist at Loblaws in Simcoe, Ont, fulfilled prescriptions for a cashier at the store. In 2008, they developed a romantic and consensual sexual relationship. When Loblaws found out, it fired him and referred the situation to the Ontario College of Pharmacists, which began disciplinary proceedings against him in 2011.
Under the code, any sexual activity between a health professional and a patient constitutes sexual abuse that automatically leads to loss of a licence to practise for at least five years.
Hanif did not challenge the purpose of the code — to prevent sexual abuse. Instead, he maintained that automatically stripping him of his licence effectively stigmatized him as a sexual abuser.
As a result, he argued, the provincial code had crossed the line into "impermissible regulation of morality in the context of consensual sexual relations," something only the Criminal Code can do.
Last November, Superior Court Justice Graeme Mew rejected Hanif's arguments.
"The imposition of mandatory licence revocation in certain cases of sexual abuse may well be seen by some as too blunt an instrument to address the undoubted harm caused by health-care professionals who have sexual relations with a patient," Mew said in his decision.
"That does not render the impugned provisions of the code criminal law."
Mew found the code's mandatory revocation provisions are concerned with preventing sexual abuse of patients by professionals.
Their aim is to make sexual acts "inconsistent with a professional-patient relationship," he said.
The Appeal Court agreed, saying Mew's analysis was correct.
For one thing, the Appeal Court said, the provisions do not have the effect of regulating morality but are aimed at maintaining the integrity of the professional-patient relationship.
"They do not have the effect of importing notions of sexual morality on consenting adults," the court found.
In addition, the Appeal Court noted all offences involve some stigma that may lead to a loss of respect in the public eye — and that includes breaking provincial law.
