Changes to the Regulated Health Professions Act: Expected if not Welcomed
By Mia London and Brian Hanulik
On December 12, 2006, the Ontario Government introduced Bill 171, the Health Systems Improvement Act, 2006 (the “Act”). The Act, comprising 17 different schedules, amends and repeals a number of statutes administered by the Minister of Health and Long-Term Care. Of particular importance to health care professionals, the Act amends in important ways the Regulated Health Professions Act, 1991, (the “RHPA”) and the Health Professions Procedural Code (the “Code”). In addition, the Act, when passed, will amend other statutes to allow for the regulation under the RHPA of four additional health professions – naturopathy, homeopathy, kinesiology, and psychotherapy.
The Act follows the release of the Health Professions Regulatory Advisory Council’s recommendations to the Minister in May, 2006. The changes to the complaints, quality assurance, and discipline processes are substantive and will affect the relationships between Members, Colleges, and members of the public.
A. Amendments to the RHPA and the Code
Highlights of proposed amendments to the RHPA and the Code include the following:
1. Creation of the Inquiries, Complaints and Reports Committee (“ICR Committee”)
The new ICR Committee will replace the Complaints Committee and assume many of the functions currently exercised by the Executive Committee and Boards of Inquiry.
Members will continue to have the right to make written submissions to the ICR Committee within 30 days. Currently, members may be asked to make submissions on less than 30 days notice to the Executive Committee. However, the ICR Committee will have the ability to specify a period of less than 30 days if it holds the opinion on reasonable and probable grounds, that the conduct of the member exposes or is likely to expose his or her patients to harm or injury.
The ICR Committee will no longer provide reasons to the complainant and/or the Member when it takes no action in response to a complaint or report.
In considering whether to refer a specified allegation of a member’s professional misconduct or incompetence to the Discipline Committee, the ICR Committee will be required to consider all available prior decisions involving the member, unless the decision was to take no further action. The ICR will be prohibited from referring a matter to the Quality Assurance Committee (QAC), although the panel may exercise the power of the QAC with necessary modifications.
The time limit for a panel of the ICR Committee to dispose of a complaint will increase from 120 to 150 days after the complaint is filed. Following 150 days, decreasing time limits are in place, and the Registrar is required to notify the complainant and the Member of the new expected date on which the complaint is expected to be disposed of.
The ICR Committee will have the power to make an interim order directing the Registrar to suspend or impose terms, conditions or limitations on a member’s certificate of registration without notice to the member, although the member will have the right to make submissions while the suspension or the terms, conditions or limitations are in place. The ICR can exercise this new power if it holds the opinion on reasonable and probable grounds that the conduct of the member exposes or is likely to expose his or her patients to harm or injury, and urgent intervention is needed.
With capacity matters, the ICR Committee will have the ability to direct the Registrar to suspend a member’s certificate of registration without notice to the member until she or he submits to a physical or mental examination. Again, the ICR Committee may take this step if it is of the opinion, on reasonable and probable grounds, that the physical or mental state of the member exposes or is likely to expose his or her patients to harm or injury, and urgent intervention is needed. The Member is permitted to make submissions while the suspension is in place.
2. Alternative Dispute Resolution Process
The Code will be amended to formally allow for the use of alternative dispute resolution processes to resolve complaints. The Registrar will have the ability to refer a matter, with the consent of both the complainant and the member, to an alternative dispute resolution process if the matter has not yet been referred to the Discipline Committee and if the matter does not involve an allegation of sexual abuse.
If a complaint is resolved through an ADR process, the ICR Committee shall be advised of the resolution. The ICR Committee may stop its investigation and adopt the resolution, or it may continue to investigate the complaint.
3. Information Available on the Register
The Act will require that a notation of every unresolved matter that has been referred by the ICR Committee to the Discipline Committee must be included on the Public Register. This notation will be removed only when the matter has been resolved.
A notation of every reprimand issued to a member will be included on the Register.
The requirement that the result of every disciplinary and incapacity proceeding be on the register will be amended. The result of the proceeding, including a synopsis of the decision, will be on the Register. If the Committee makes no finding, the decision will not be included on the Register.
Finally, there will be a new requirement that if a Member resigns and agrees never to practise again in Ontario during or as a result of a proceeding, a notation of the resignation and the agreement will be added to the Register.
4. Public Access to Information
The Act will require that every College have a website. The Minister may prescribe by regulation specific information that must be included on that website. All information designated as public in the by-laws will be available on the website. If a member of the public inquires about a College Member, the Registrar will be required to make reasonable efforts to provide the person with a list of the information available to the public on the Register.
The College will be permitted to publicly confirm whether a member is under investigation if there is a “compelling public interest” in disclosing that information. Colleges are not currently permitted to comment on investigations.
The College will also now be required to provide greater public access to information regarding their members, including practice information, practice restrictions and any disciplinary action taken against the member.
5. Quality Assurance
The College’s Quality Assurance Committee will have the following exhaustive list of powers:
- requiring a member whose knowledge, skill and judgment have been assessed and found to be unsatisfactory to participate in specified continuing education or remediation programs;
- directing the Registrar to impose terms, conditions, or limitations for a specified period on the certificate of registration of a member whose knowledge, skill and judgment have been assessed or reassessed and have been found to unsatisfactory;
- directing the Registrar to remove terms, conditions or limitations before the end of the specified period if the QAC is of the opinion that the knowledge, skill and judgment are now satisfactory;
- disclosing the name of the member and allegations against the member to the ICR Committee if the QAC is of the opinion that the member may have committed an act of professional misconduct or may be incompetent or incapacitated;
- referring a member to the ICR Committee for a failure to co-operate with the QAC or any assessor appointed by it or to participate in the quality assurance program or a specified program or assessment.
6. Mandatory Reporting by Facility Operators
In addition to mandatory reports that are currently required in cases of suspected sexual abuse of patients, facility operators will now be obligated to report to the College whenever it has “reasonable grounds to believe” that a Member who practises at that facility is incompetent or incapacitated. In cases where there are reasonable grounds to believe that such incompetence or incapacity is likely to expose a patient to harm or injury and there is an urgent need for intervention, such mandatory reports must be filed forthwith.
7. Jurisdiction of the College
The Code will be amended and the jurisdiction of the Colleges broadened to allow that a person whose certificate of registration has been revoked or who has resigned will continue to be subject to the jurisdiction of the College for misconduct or incompetence, pursuant to s. 75 of the Code. In addition, a person whose certificate of registration is suspended will be subject to the jurisdiction of the College for incapacity, professional misconduct or incompetence, such that the member could be investigated pursuant to s. 75 of the Code.
8. Participation of Non-Parties
The Code will be amended to require that a non-party who wishes to participate in a hearing must make an application before a panel. The panel continues to have the ability to allow the non-party to participate in a hearing.
B. Regulation of Four Additional Professions
The Act will add four more regulated health professions under the proposed changes to the RHPA. Specifically, the professions of naturopathy, homeopathy, kinesiology and psychotherapy will now be regulated through three new regulatory colleges.
Kinesiology and psychotherapy will each be regulated by newly created colleges. Naturopathy and homeopathy will be jointly regulated by a single new health college. Currently, naturopaths are regulated under the Drugless Practitioners Act while homeopathy, kinesiology and psychotherapy are currently unregulated.