Massage sex restrictions upheld by B.C. Appeal Court
Massage therapist argued College placed 'career destroying' conditions on practice
In a case closely watched by healthcare regulators, B.C.'s Court of Appeal has sided with a decision by the province's college of massage therapists to restrict the practice of a licensee based solely on unfounded allegations of sexual misconduct.
The college placed special conditions on Trevor Scott in the days after a female patient came forward to claim she heard the Prince George massage therapist masturbating during a session in October 2014.
Scott has since denied the claims, but before even hearing his side of the story, the college's inquiry committee decided to take action "necessary to protect the public" pending a full hearing of the complaint.
A test of limits
The case is seen as a test of the limits of the bodies which govern health care practitioners through Section 35 of B.C.'s Health Professions Act.
The legislation gives more than two dozen professional colleges and organizations the right to issue interim orders against registrants pending the outcome of a disciplinary hearing.
The question in front of the court: What should the standard for suspension or restriction be?
The woman claimed she heard Scott unzip his pants and felt his penis touch her draped arm, but didn't see anything because she was lying face down on a massage table.
Scott claims he was forced to massage the woman with one hand because he was shielding himself from her strong body odour with his other arm.
The complainant also went to the RCMP but told them she didn't want him charged or contacted.
Scott won a judicial review of the initial order in B.C. Supreme Court where he argued the order — requiring him to have a chaperone for female patients and to publicize the restrictions — could have "career destroying" consequences.
The Supreme Court judge questioned the plausibility of the woman's story and noted that the complaint was based on what she "heard and felt, not what she saw."
'Is action necessary?' vs 'Did he do it?'
In the Court of Appeal decision, Chief Justice Robert Bauman said the inquiry committee should have tried to ensure that Scott had a reasonable opportunity to attend the hearing where the conditions were imposed.
But Bauman said the inquiry committee wasn't supposed to decide the facts; their job was to decide only if a prima facie case existed to support the allegations, and whether the nature of the claims warranted immediate action.
"Its task, as characterized by the committee at bar, is to make 'a provisional assessment of the facts' to consider the reliability of the evidence, its internal and external consistency, the plausibility of the complaint and motivation," wrote Bauman, speaking for the other two judges.
"This is in aid of determining whether the complaint is manifestly unfounded or manifestly exaggerated."
The inquiry committee is made up of a different group of experts to the disciplinary committee which will ultimately hear the full case.
"In the context of this case, the final question for the discipline committee is: 'Did the therapist do it?," Bauman wrote.
"And the question before the ... inquiry committee: 'Is action necessary to protect the public in the interim?"
Bauman faulted the Supreme Court judge who quashed the original order for "weighing the evidence" to determine if it was sufficient to find Scott had engaged in sexual misconduct.
'The best way to protect women'
The College of Physicians and Surgeons was an intervenor in the case, along with the West Coast Women's Legal and Education Fund (LEAF).
They argued that the Supreme Court judge shouldn't have faulted the complainant for not looking at Scott during the alleged misconduct.
West Coast LEAF director of litigation Raji Mangat issued a statement praising the appeal court decision.
"We are pleased that the court found that women's allegations of sexual misconduct must be taken seriously," Mangat wrote.
"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 Registered Massage Therapists' Association of B.C. also intervened, agreeing with Scott's contention that the rules would "allow a health college to 'inflict grievous reputational and financial harm on a health professional on the basis of one, unproven, unsworn, untested complaint."
Scott is married and has no history of misconduct and no criminal record. He has had no other complaints made against him. His lawyer argued that the basic details of the woman's story are implausible.