Massage sex complaint case tests health care regulators

An allegation of sexual misconduct against a Prince George massage therapist has turned into a test case for the ability of healthcare regulators to act quickly when the public is deemed at risk.

B.C.'s College of Massage Therapists wants the province's Court of Appeal to reinstate an order restricting Trevor Scott's practice ahead of a hearing into allegations made by a female patient.

Heard, not seen

The woman accused Scott of masturbating during a session in October 2014 while she lay face down on a massage table; she didn't see him undress but says she heard Scott unzip his pants and felt his penis touch her draped arm.

A hearing is set for this March, but the college's inquiry committee acted days after the woman came forward, ordering Scott to have a chaperone present with female patients and to inform his clientele of the restrictions against him.

Scott claims the allegations are baseless and says the limitations will bankrupt his practice; he says he was giving a massage with one hand and using the other to cover his face against the woman's excessive body odour.

Lawyers for both sides argue the situation throws a spotlight on the highly sensitive nature of sexual misconduct allegations and the duty of regulatory colleges to balance the protection of the public against the rights of registrants.

"This case will have significant implications for all the health professions regulated by the Health Professions Act," college lawyer Angela Westmacott told the appeal court judges.

'Is it coherent? Is it plausible?'

The legislation governing more than two dozen B.C. health care professions gives regulators the right to issue interim orders against registrants pending the outcome of a disciplinary hearing.

The woman who complained about Scott also went to the RCMP but told them she didn't want him charged or contacted. But police provided the college with a brief summary of their interview.

The decision to restrict Scott's practice came from an inquiry committee of industry experts separate from the panel that will ultimately try his case; Westmacott said their job was not to judge the evidence but to consider if the woman's story was plausible and if the public might be at risk.

"Is it coherent? Is it plausible?" she said. "If he did it in this case, there was nothing to stop him doing it in another case."

The inquiry committee argued that the standard of proof to suspend someone fell "somewhere between the assertion of one or more unsubstantiated allegations and the high standard" required at a full hearing.

But Scott won a judicial review of the order in B.C. Supreme Court, where a judge said the complaint was based on what the woman "heard and felt, not what she saw."

The judge questioned the plausibility of a story the woman "could have easily opened her eyes" to verify.

No history of misconduct

The case is the first time the appeal court has been asked to consider the test for issuing professional restrictions in a case of alleged sexual misconduct.

Westmacott said such complaints are by their nature 'he said/she said': appointments happen behind closed doors and corroborating evidence is rarely found. But that doesn't mean the college shouldn't act.

The West Coast Women's Legal and Education Fund, LEAF,  is intervening in the case in support of the college; one of their lawyers said the case highlights the power imbalance between female patients and doctors.

She also said courts have long accepted non-visual evidence in cases of sexual misconduct, and the complainant should not be judged for failing to look up from the massage table. 

Scott's lawyer, John Green, says his married client has no history of misconduct and no criminal record. He argued that the inquiry committee should have considered the lack of a pattern along with Scott's reputation.

He also said the basic details of the story are implausible. The woman claimed Scott masturbated for 25 minutes straight while delivering a massage with his other hand.

"I'm not saying that it's impossible," he said. "But it's certainly not something I've found in any case in Canada, and I've looked."

Green also predicted the case would have huge implications — but for wrongly accused practitioners. 

The Registered Massage Therapists Association of B.C. is intervening in support of Scott, and the B.C. College of Physicians and Surgeons is intervening in support of the College of Massage Therapists.

"The registrant's interests are important," said Nitya Iyer, lawyer for the College of Physicians and Surgeons. "But they're not as important as protection of the public interest."