B.C. Court of Appeal rules in favour of regulator in massage therapist case

Mari-Len De Guzman
April 26, 2016
By
The College of Massage Therapists of British Columbia (CMTBC) was within its rights under the Health Professions Act when it imposed interim conditions on a massage therapist accused of sexual misconduct. This was the decision Monday of the B.C. Court of Appeal (BCCA) overturning an earlier ruling by a Supreme Court judge.

"The extraordinary actions of imposing interim conditions or suspension under s. 35 of the Health Professions Act may be taken where there is a prima facie case supporting the index allegation, and where, based on the material before the inquiry committee, the public requires immediate protection," Chief Justice Robert Bauman wrote in his 26-page decision.

The CMTBC earlier placed interim restrictions on Trevor Scott, a registered massage therapists from Prince George, B.C., following a complaint filed by one of his patients alleging sexual misconduct. The restrictions were put in place pending an investigation, and included a condition that he can only treat women when there is a chaperone present. No criminal charges were laid against Scott.

Scott then took his case to the Supreme Court asking the court to reverse the interim conditions imposed by the college and was granted a favourable decision by Justice Laura Gerow. The CMTBC appealed this decision with the BCCA.

The CMTBC hailed the appelate court's ruling as a "very important decision" not just for the RMT college but for all health professional regulators in B.C.

"This decision clarifies the test for imposing conditions on a registrant's licence pending completion of an investigation into serious allegations," explained Susan Addario, registrar and CEO, CMTBC. "The inquiry committee's task is to make a provisional assessment of the facts, and to consider the reliability and plausibility of the information and whether it is internally consistent."

She added that the inquiry committee does not decide the merits of the case, nor does it conduct a mini-trial. That is the role of the discipline committee. "The Court agreed with the approach the inquiry committee took in this case."

West Coast Women's Legal Education and Action Fund (LEAF), a B.C. organization promoting women's equality through the law and one of the intervenors in the appeal case, welcomed the appellate court's decision.

"We are pleased that the Court found that women's allegations of sexual misconduct must be taken seriously," Raji Mangat, director of litigation for West Coast LEAF, said in a statement. "Women are disproportionately the victims of sexual assault. Therefore, allowing the bodies we trust to govern healthcare professions to place interim restrictions on healthcare practitioners while an investigation is conducted is the best way to protect women and ensure equal and safe access to healthcare."

The organization noted the case has implications far beyond the massage therapy profession as "this case clarifies the standard of evidence required for many health professions' governing bodies to act quickly in the public interest.

West Coast LEAF pointed out that in assessing the risk of public safety, decision-makers cannot rely on "discriminatory myths and stereotypes about women."

"Sexual misconduct disproportionately affects women, including in the healthcare setting where a power imbalance between patient and healthcare practitioner adds to women's vulnerability," the organization said.

The CMTBC conducted a discipline hearing on March 1 to consider the allegation against Scott. The hearing was adjourned after four days. Addario said the hearing will recommence on July 12.

"The allegations are and remain unproven unless they are admitted by the registrant or determined by the discipline committee," Addario stressed.

As of this writing, the Registered Massage Therapists' Association of B.C. (RMTBC) has yet to issue a statement regarding this recent court decision. In an e-mail to Massage Therapy Canada, executive director Brenda Locke said the association's lawyers are currently looking at the decision and the impact it has not only on RMTs but all health-care professionals in the province.

RMTBC represents more than 3,000 registered massage therapists in B.C. 

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