College of Massage Therapists of BC v Scott [2015]

Case summary

The case is about when and how the governing bodies of healthcare professions can act to protect the public in response to a complaint of sexual misconduct. The College of Massage Therapists of British Columbia received a complaint from a woman alleging that, during a massage therapy session, her massage therapist masturbated twice while massaging her and placed his penis on her wrist.  The College determined that it was necessary to place conditions on the massage therapist’s practice pending a full investigation in order to protect the public.

On review, the Supreme Court of BC overturned the interim conditions put in place by the College, determining that the complainant’s account of what she felt and heard during her massage, without substantiation, was insufficient to establish a risk to the public. The College appealed the decision to the BC Court of Appeal.

West Coast LEAF’s involvement

As an intervenor, West Coast LEAF argued that:

• Allegations of sexual misconduct similar to those in this case fall on the serious end of the misconduct spectrum and are likely to require urgent action in order to protect the public;
• The evidentiary standard required to establish a risk to the public must take into account the inherent likelihood that the only evidence of sexual misconduct will often be a complainant’s word against a registrant’s; and
• The evidence required in order to establish a risk to the public must not result in the complainant’s evidence being assessed on the basis of myths and stereotypes about women and sexual violence.

Decision

The BC Court of Appeal released its decision on April 25, 2016. The Court ruled that bodies governing healthcare professionals may impose interim conditions or temporarily suspend a healthcare practitioner where the public requires immediate protection.

In making such a decision, the issue is not whether the allegations are true or can be proven, but rather whether on the face of the information reported, there is an immediate and real risk of harm to the public. In this case, the decision of the College of Massage Therapists of British Columbia to impose conditions on the massage therapist’s ability to perform massage therapy was reasonable in the circumstances.

The implications of the case go beyond the College of Massage Therapists, as this case clarifies the standard of evidence required for many health professions’ governing bodies to act quickly in the public interest.

Case documents

Application for leave to intervene – BC Court of Appeal

Written argument – BC Court of Appeal

Decision – BC Court of Appeal