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RHPA - Sex Abuse. Tatla v. Ontario College of Pharmacists [meaning of "patient"]
In Tatla v. Ontario College of Pharmacists (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, this brought against the decision "of the Discipline Committee (the “Committee”) of the Ontario College of Pharmacists (“OCP”) that found him guilty of sexually abusing his patient and coworker under the Health Professions Procedural Code (the “Code”)".
The court considered the meaning and determination of 'patient', here "for the purposes of the sexual abuse provisions of the Code" (HPPC):Question of whether the complainant is a patient is one of mixed fact and law
[23] In 2017, the Legislature passed the Protecting Patients Act, which was intended to encourage the reporting of sexual abuse and implement zero tolerance for sexual abuse by health professionals. As noted above, the Explanatory Note accompanying the Protecting Patients Act and written as a reader’s aid states that for the purposes of the sexual abuse provisions of the Code, the introduction of the definition of “patient” is “without restricting the ordinary meaning of “direct interaction” and as expanding the meaning of the term “patient”. It follows that the Patient Criteria Regulation and its requirement of “direct interaction” was not intended to narrow the definition of “patient” and the common law test for the definition of “patient” remains relevant.
[24] Courts have repeatedly characterized the question of “who is a patient” as a factual inquiry calling for the specialized expertise of administrative decision-makers operating in the realm of professional discipline: College of Physicians and Surgeons of Ontario v Dr Kayilasanathan, 2019 ONSC 4350 at paras 37, 39; Mussani v College of Physicians and Surgeons, 2004 CanLII 48753 (ON CA) at para 66.
[25] In making its determination of whether the complainant was the appellant’s patient, the Committee was required to draw upon its knowledge of the practice of pharmacy, consider pharmacy practice, NAPRA Standards, and the import of dispensing a prescription and a clinical verification of a prescription refill. It follows that the finding that the complainant was the appellant’s patient is a finding of mixed fact and law subject to the standard of review of palpable and overriding error and not an extricable question of law. Palpable and overriding error is a highly deferential standard which recognizes the expertise and competence of the Committee: Housen, supra, at paras. 12-13.
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No palpable and overriding error in the Committee’s finding of “direct interaction”
[30] The Committee was asked to determine whether there had been a “direct interaction” between pharmacist and client. The answer required it to interpret the Patient Criteria Regulation—a regulation applicable to all 26 health regulatory colleges governed by the Code—in the specific context of the practice of pharmacy. Such an inquiry is a question of mixed fact and law, falls squarely within a Discipline Committee’s specialized expertise in professional misconduct matters as it relates to professional practice and as a question of mixed fact and law, is owed deference by the courts.
[31] The Committee considered the rules of statutory interpretation as cited in Bell ExpressVu, supra. It reasonably found that to interpret what constituted “direct interaction”, it must consider the RHPA as a whole and provisions in the Code including the College’s duty to serve and protect the public interest under ss. 3(2), and the statement of purpose relating to sexual abuse provisions contained in s. 1.1 and as amended by the Protecting Patients Act. (Para. 144 of the Decision).
[32] The appellant took the position before the Committee that a “direct interaction” requires a consultation occurring which the Committee rejected. The appellant abandoned this position on this appeal and does not argue a “direct interaction” requires a consultation. On this appeal, the appellant submitted that “direct interaction” refers to some form of interaction, engagement, or communication between two people without the interference of any intermediaries or third parties.
[33] Before the Code was amended effective May 1, 2018, the OCP’s discipline committees regularly determined whether an individual was the patient of a registrant, each case being specific to its own facts.
[34] Ontario College of Pharmacists v Forcucci, 2021 ONCPDC 2, (involving allegations that predated the Patient Criteria Regulation), considered the criteria set out in Ontario (College of Physicians and Surgeons of Ontario) v Redhead, C.A., 2013 ONCPSD 18 for determining the context of the doctor-patient relationship, referred to as the “Redhead criteria”. The Redhead criteria include, among other things, the existence of a patient file, the existence of a billing record, and whether there was a coextensive relationship with another registrant. In Forcucci, the Redhead criteria were adapted to the experience of pharmacy professionals for determining the existence of a pharmacist-patient relationship. It also identified additional relevant factors to be considered, including the scope of practice and authorized acts set out in ss. 3 and 4(1) of the Pharmacy Act, as well as the NAPRA Standards.
[35] The Pharmacy Act defines the scope of practice of pharmacy to include the “custody” and “dispensing” of drugs (s.3 (a)) and the authorized acts of pharmacists to include among other things “dispensing, selling or compounding a drug or supervising the part of a pharmacy where drugs are kept.” (s. 4.1). The relevant factors identified in Forcucci for determining a pharmacist-patient relationship support the Committee’s conclusion in this case that the complainant was a patient of the appellant.
[36] The Committee found at para. 145 that if it accepted the appellant’s position that a “direct interaction” required a consultation, the criteria for an individual to become a patient of a registrant would be more difficult than if the Patient Criteria Regulation had never been enacted. It found that this would tend to discourage victims of sexual abuse from coming forward to report sexual abuse. It held that this could not be the result the Legislature intended, having regard to the statement of purpose under s.1.1 of the Code and the provisions of the Protecting Patients Act and the RHPA as a whole. The same could be said if the Committee interpreted “direct interaction” in a manner that failed to take into account the way that pharmacists provide services to patients in pharmacies. On the facts of this case, it would be nonsensical to base the pharmacist-patient relationship on who scanned the medication or whether the pharmacist handed the prescription directly to the complainant.
[37] In support of its conclusion that the appellant engaged in a direct interaction with the complainant, the Committee stated:[148] The Complainant provided evidence that she processed a prescription refill for pms-benzydamin at 13:24 on the Incident Date. The dispensing pharmacist was the Registrant and the signature on the prescription hardcopy belonged to him. The Complainant stated that she knew it was the Registrant’s signature because she saw him sign the hardcopy. She testified that no other pharmacist or College registrant was involved in the filing or dispensing of her medication. The Complainant testified that the medication had been billed to her insurance plan and that the prescription was 100 percent covered by her insurance, therefore she was not required to pay anything for the prescription. The Complainant also stated that when she left the Pharmacy at the end of her shift, she took the pms-benzydamin prescription home with her. The Panel accepts the Complainant’s evidence on these points as credible and reliable.
[149] The Complainant’s evidence was supported by documentary evidence in the form of an Agreed Statement of Facts. The Agreed Statement of Facts included a hardcopy of a pms-benzydamin prescription filled on August 14, 2022 and timestamped at 13:24 for the Complainant (Exhibit 2 at Tab 3). The prescription hardcopy contained a billing record, showing that the Complainant’s insurance plan had provided a payment of $37.02 for the prescription dispensed.
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[151] The Panel finds that the Registrant engaged in a direct interaction with the Complainant on the Incident Date when he provided a health care service to her by dispensing the pms-benzydamin prescription. More specifically, the registrant conducted a controlled act under s.4(1)(1) of the Pharmacy Act, supra and only a pharmacist who is a registrant of the College is authorized to perform that act.
[152 The Panel finds that two conditions under paragraph 1.1 of the Patient Criteria Regulation, supra, have been met in that:
1. The Registrant, in respect of a health care service provided by the Registrant to the individual, charged or received payment from the individual or a third party on behalf of the individual; and
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2. The Registrant contributed to a health record or file for the individual. [38] I do not agree with the appellant’s argument that the Committee’s interpretation of “direct interaction” makes the four conditions in s. 1(1) of the Patient Criteria Regulation redundant. I find the OCP’s submission reasonable that those conditions may be relevant in assessing whether informal advice provided by a regulated health professional meets the threshold of a pharmacist-patient relationship. Nor do I agree with the appellant’s submission that the Committee’s interpretation renders the phrase “direct interaction” redundant. Health care professionals may consult with one another regarding a patient matter and the NAPRA Standards refer specifically to collaboration (s.2 and Standard s.4). The OCP’s submission is reasonable that reference to “direct interaction” makes clear that informal consultation between health care professionals, without more, will not necessarily be sufficient to trigger a patient relationship involving the professional being consulted.
[39] The filling of a prescription comprises multiple controlled acts performed by a registered pharmacist: dispensing, selling, and supervising drugs (Pharmacy Act at s. 4(1)). To find that the complainant was not a patient of the appellant would mean that a member of the public could have their prescription filled without ever becoming a patient, a conclusion that flouts the experience of pharmacists and patients and the power dynamic between them. As found by the Committee, there was a power imbalance between the appellant and the complainant which was aggravated by the complainant’s subordinate position at work (para.234 of the Decision). The Committee’s finding that the definition of “patient” under the Patient Criteria Regulation has been satisfied on the facts of the case is consistent with protecting the public interest. There is no palpable and overriding error. . Tatla v. Ontario College of Pharmacists
In Tatla v. Ontario College of Pharmacists (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, this brought against the decision "of the Discipline Committee (the “Committee”) of the Ontario College of Pharmacists (“OCP”) that found him guilty of sexually abusing his patient and coworker under the Health Professions Procedural Code (the “Code”)".
Here the court considers the Pharmacy Act professional discipline regime regarding sexual abuse:Statutory Framework and Standards of Practice
[7] The OCP is a self-governing body for the profession of pharmacy. Its mandate includes serving and protecting the public interest by regulating the practice of pharmacy and governing its members: The Code, ss. 3(1), 3(1)2. The role of the OCP, its authority, and powers are set out in legislation including the RHPA and the Code. The statutory scheme for addressing matters of professional misconduct, including the sexual abuse of a patient, is comprised of, among other things, the RHPA, the Code, the Pharmacy Act, 1991, S.O. 1991, c.36 (the “Pharmacy Act”), and their regulations.
[8] The Code, at s. 1 (3), defines sexual abuse by a member of the pharmacy profession to mean:(a) sexual intercourse or other forms of physical sexual relationship between the member and the patient,
(b) touching, of a sexual nature, of the patient by the member, or
(c) behaviour or remarks of a sexual nature by the member towards the patient. [9] Section 1.1 of the Code is a “statement of purpose” applicable to all provisions dealing with the sexual abuse of patients. The statement makes clear that these provisions are directed at the reporting, remediation, and elimination of sexual abuse:1.1 The purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse, to provide funding for therapy and counselling in connection with allegations of sexual abuse by members and, ultimately, to eradicate the sexual abuse of patients by members. [10] A finding of sexual abuse under s. 51(1) (b.1) of the Code (sexual abuse of a patient) requires there to be a patient relationship concurrent or overlapping with the conduct at issue. Until May 1, 2018, the definition of “patient” was determined under the common law. On that date, a number of amendments came into effect pursuant to the Protecting Patients Act, S.O. 2017, c.11 at Schedule 5 and which pertained to circumstances of professional misconduct where allegations are of a sexual nature: ss. 1(6), 1.1, 42.2, 85.7.
[11] The Protecting Patients Act introduced the following definition of “patient” for the purpose of the Code’s sexual abuse provisions:1(6) For the purposes of subsections (3) and (5),
“patient”, without restricting the ordinary meaning of the term, includes,
(a) an individual who was a member’s patient within one year or such longer period of time as may be prescribed from the date on which the individual ceased to be the member’s patient, and
(b) an individual who is determined to be a patient in accordance with the criteria in any regulations made under clause 43 (1)(o) of the Regulated Health Professions Act, 1991; (“patient”) … [Emphasis added.] [12] An Explanatory Note accompanying the Protecting Patients Act and written as a reader’s aid describes the introduction of the definition as expanding the meaning of “patient”:4. For the purposes of the sexual abuse provisions of the Code, the definition of “patient”, without restricting the ordinary meaning of the term, is expanded to include an individual who was a member’s patient within the last year or within such longer period of time as may be prescribed from the date on which they ceased to be a patient, and an individual who is determined to be a patient in accordance with the criteria set out in regulations. [Emphasis Added.] [13] Also on May 1, 2018, Ontario Regulation 260/18 (the “Patient Criteria Regulation”) came into force, prescribing criteria for the purpose of the statutory definition of “patient” at s. 1(6)(b) of the Code. The Patient Criteria Regulation provided that the definition will be met where there is a direct interaction and at least one of four specified conditions are present while also setting out limited exceptions to that. It states:The following criteria are prescribed criteria for the purposes of determining whether an individual is a patient of a member for the purposes of subsection 1 (6) of the Health Professions Procedural Code in Schedule 2 to the Act:
1. An individual is a patient of a member if there is direct interaction between the member and the individual and any of the following conditions are satisfied:
i. The member has, in respect of a health care service provided by the member to
the individual, charged or received payment from the individual or a third party on behalf of the individual.
ii. The member has contributed to a health record or file for the individual.
iii. The individual has consented to the health care service recommended by the member.
iv. The member prescribed a drug for which a prescription is needed to the individual.
2. Despite paragraph 1, an individual is not a patient of a member if all of the following conditions are satisfied: [The conditions are not applicable here and have not been reproduced.] [14] The OCP has adopted the National Association of Pharmacy Regulator Authorities Model Standards of Practice for Canadian Pharmacists published March 2009 (the “NAPRA Standards”), which codify the standards of a reasonably prudent pharmacist practising in Ontario. The NAPRA Standards define “dispensing” to mean, with respect to a drug, any one or more of (i) evaluating a prescription for a drug, (ii) assessing the patient and the patient’s health history and medication record, (iii) packaging and labelling of a drug, or (iv) providing a drug to or for a person pursuant to a prescription.[1]
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