Health Professions Council


SAFE CHOICES:
A New Model for Regulating
Health Professions in
British Columbia
Part II: Legislative Review



II.     INTRODUCTION TO REVIEW PROCESS

The legislative review was conducted pursuant to the Terms of Reference issued by the Minister in accordance with section 25 of the Health Professions Act, RSBC 1996, c. 183 ( HPA ).



A.     THE PURPOSE OF THE REVIEW

The Terms of Reference directed the Council to review the governing statutes for each of ten health professions.

The purpose of the review is twofold:

  1. To determine whether designation of the health profession under the HPA would be in the public interest or whether there are unique features of the health profession, or other relevant factors, that justify a continuing need for a separate statute.

  2. To determine what amendments, if any, are required to the current statute, rules, regulations and bylaws for each profession to provide adequately for the regulation of the profession in the public interest and to ensure that the current statute contains the core principles of professional regulation reflected in the HPA and discussed in Schedule B to the Terms of Reference.

The Terms of Reference and the Criteria and Guidelines which expand upon them are included as an Appendix to this report.



B.     THE BACKGROUND OF THE REVIEW

The Terms of Reference flow from several recent reports of royal commissions and government policy statements which have emphasized that an integrated approach to the delivery of health care is in the public interest. Co-ordination and co-operation amongst health care providers is of fundamental importance to such an approach. Consistency in statutory instruments is crucial to this aim.

A general policy favouring a uniform regulatory structure was referred to in the report of the Seaton Commission on Health Care in British Columbia: Closer To Home. The Report of the British Columbia Royal Commission on Health Care and Costs (Closer to Home). The following excerpts are from that part of the Commission's report which deals with regulation of the health professions, on page D-30:

    There is a lack of consistency among the 16 provincial acts that govern the health care professions, despite the fact that all of the colleges established under the acts have the same legislative mandate: to protect the public from preventable harm. Such inconsistency increases the likelihood of variations in judicial interpretations of the acts. Underlying this situation are persistent jurisdictional disputes and a distinct lack of co-operation among the health care professions.

    ...

    In general, a lack of consistency characterizes the acts with respect to complaints, discipline and appeals, resulting in insufficient public accountability, no uniformity in the structure or organization of the different statutes, and an absence of common terms.

These views led the Commission to conclude that the existing Health Professions Act be repealed and the HPA be revised to serve as the umbrella act for regulating health professions.

The general policy of legislative uniformity is also consistent with initiatives in several other provinces -- notably Ontario, which has implemented umbrella legislation for the health professions, and Alberta, which is in the process of enacting umbrella legislation.

Alberta's Health Professions Act, SA 1999, c. H-5.5, or Bill 22, 1999, received Royal Assent on 19 May 1999 and is currently awaiting proclamation.





C.     THE ANALYTICAL FRAMEWORK

In reaching its conclusions, the Council considered two main directives, both of which are embodied in the Terms of Reference: first, the HPA embodies the minimum regulatory standards which should govern all self-regulating professions; and second, designation of all health professions is the preferred option and it is for the individual profession to justify the need for a separate statute.





1.     The Core Principles of Professional Regulation

The Council's primary task in conducting the legislative review is to determine whether it is in the public interest that a health profession be designated under the HPA . The analysis of whether the professional statute contains the core principles of professional regulation is an important element in the consideration of whether designation is in the public interest. The extent to which a professional statute currently embodies these core principles is clearly one of the factors the Council must consider in making this determination.

2.     The Terms of Reference

The Terms of Reference underscore the importance of uniformity in legislation and the general policy favouring designation. The Terms of Reference also refer to the desirability of minimizing the number of statutes that govern the health professions and the importance of a high degree of consistency amongst statutes. They direct the Council to consider specifically whether there are unique features of a health profession or other relevant factors that justify a separate statute. Thus, the onus is on the profession to establish why a separate statute is in the public interest.

One of the first clear positions which became apparent soon after the process started was the widespread opinion that designation under the HPA is tantamount to government "taking over" the professions.

The Council does not accept this view. The HPA relies on a system of self-regulation, and professions regulated under the HPA still have colleges and still have a broad rule-making power. Indeed, the basic structure of the HPA is remarkably similar to the current professional statutes. While the Council acknowledges that there is some difference between provisions of the HPA and the current professional statutes, the Council also stresses that the HPA clearly embodies a strong commitment to the principle of self-regulation. Indeed, the regulation of the actual practice of the profession by its members is left almost entirely to the profession itself.

The following discussion on the principles upon which self-regulation is founded may help erase this erroneous interpretation of the HPA .

It is an accepted principle that self-regulation is a privilege, not a right. Government grants a profession certain rights in return for which the profession agrees to regulate the profession in the public interest. This principle has been judicially noted in the British Columbia Supreme Court case of Costco Wholesale Canada Ltd. v. British Columbia Assn. of Optometrists, [1998] B.C.J. No. 646. It is the government which maintains fundamental control over self-regulatory bodies through the legislative process.

Thus, it is erroneous to consider that the HPA "takes over" a profession by designation. In fact, the legislature has always had the power to regulate directly and indirectly. With self-regulation, it merely delegates some authority to the profession itself. By no means is the power to self-regulate unlimited, nor is the self-regulatory body (college) autonomous.

This balance between professional self-regulation and government oversight is reflected in the HPA .





D.     THE PROCESS FOR THE REVIEW

The general process for the review provided for an initial meeting with the profession, preparation by the Chair of the Council of a comparative analysis of the profession's current statute with the HPA , discussion of the analysis with the profession, drafting of a preliminary report, roundtable discussions with representatives of the health professions under review and a final report.

Initial meetings were held with the professions in 1995. The Chair then completed his comparative analyses and circulated them to the professions under review in 1996. In 1997, the preliminary reports were drafted and sent out, and the roundtable discussions were commenced late in 1998. A separate roundtable discussion was held to discuss the changes to the HPA .

The roundtable discussions were completed in early 1999. The professions co-operated with the Council's requests for information and actively participated in the roundtable process.

The process was broad and inclusive, and all professionals were given wide latitude to provide their views on the issues. In addition, all health professions in British Columbia were invited to participate, as well as government agencies and departments and other interest groups. Research was conducted into the regulation of health professions in other provinces and U. S. jurisdictions.

The Chair then completed this comprehensive report, which will be submitted to the Minister.

During the legislative review process, the professions of naturopathic medicine, psychology and registered psychiatric nursing applied to be designated under the HPA and to repeal their profession-specific statutes. The Council was thus left with seven professions to review.

There was a notable lack of response from the professional associations representing the health profession membership. The Council prepared a preliminary analysis for each of the ten health profession statutes and sent copies to both the regulatory bodies and the membership associations. Most membership associations made no submissions and often simply agreed with little comment on the submission made by their respective regulatory body. One notable exception to this trend is in the review of the Nurses (Registered) Act where the Registered Nurses Association of British Columbia as well as the British Columbia Nurses' Union, not only made separate detailed submissions but often gave opposing views on issues the Council raised. The Council looked forward to this kind of discourse, which was a primary reason for the format of the legislative review process. Separate and detailed submissions from the regulatory bodies and the membership associations could also have stimulated more fruitful discussions within the Council's framework for the legislative review.

At the request of the Minister, the Council also conducted a separate consultation process on the issue of mandatory membership in professional associations. The Council contacted the health professions in British Columbia and the ministers of health of all other provinces and territories, as well as representatives of other professions, such as accountants, architects, engineers, lawyers, social workers and teachers. The Council published the survey on its website. The results of the consultation are discussed in the mandatory membership section of this report on page 76.





III.     ANALYSIS OF LEGISLATION

The Council's primary focus in conducting the legislative review is to determine whether designation of the health professions under the HPA would be in the public interest, and a key element of this task is to determine whether the existing health profession statutes contain the core principles of professional regulation reflected in the HPA and discussed in the Terms of Reference.

The Council made the following recommendations in nine preliminary reports:

First, the Council recommended that seven health professions statutes be repealed and that the professions be designated under the HPA. They are the following acts:

Second, the Council made a qualified recommendation with respect to the Medical Practitioners Act, RSBC 1996, c. 285, that it be repealed and the profession be designated under the HPA , provided the HPA is amended to include the suggested revisions discussed in the report.

Third, the Council recommended that the Health Emergency Act, RSBC 1996, c. 182, be retained as a separate statute.

This section of the report discusses significant issues which arose from the submissions by the health professions to the Council's consultation process. The section is organized around the five core principles of professional regulation described in the Council's Terms of Reference.



A.     MANDATE OF THE REGULATORY BODY

The Terms of Reference emphasize two issues regarding this core principle:

  1. barriers to interdisciplinary practice are not in the public interest; and

  2. it is important that there be a clear separation between the professional association and the regulatory body.

The following issues were raised by the Council's review of the health professions' legislation.

1.     Barriers to Interdisciplinary Practice

Barriers to interdisciplinary practice were discussed by the Seaton Commission in its report Closer to Home, on page D-35:

    In addition to broadly stated scopes of practice, there are other barriers to practice. For instance, there is no reason why a member of one profession should not be allowed to be a member of another profession. A provision in any regulation, rule, bylaw or Code of Ethics which prevents this from happening is inappropriate. It may be in the profession's interest to have such a prohibition, but it is not in the public interest.

    Some of the existing professional legislation makes it an offence for a member of a college to work in association with someone who is not a member of that college. But as long as the non-member does not practice within the profession's narrow scope of practice, the commission does not believe there is any substantial reason why a member of a college should not be allowed to work in co-operation or partnership with someone who is not a member. In fact, a multi-disciplinary practice may be beneficial and should be encouraged.

The Council agrees with these comments about interdisciplinary practice and has noted in its preliminary reports that several of the profession-specific statutes contain prohibitions against interdisciplinary practice. The prohibitions usually forbid registrants of a college to practise in association with a non-registrant. Some provisions prohibit affiliation or the establishment of a partnership with non-registrants.

For example, section 93(1) of the Medical Practitioners Act makes it an offence to practise medicine in partnership with a non-member unless the written consent of the Executive Committee of the College of Physicians and Surgeons of British Columbia (CPSBC) is obtained. The primary concern with this section is that broadly applied, it can create unnecessary barriers to the practice of other health professions. Although the CPSBC indicated that it uses the section to ensure that its members meet appropriate standards and practise in a manner consistent with those standards, it appears that the CPSBC has adopted a broad interpretation of the section, thus creating barriers to interdisciplinary practice.

To illustrate, the CPSBC uses this section to restrict access to laboratory facilities in British Columbia The CPSBC takes the position that diagnostic testing is the practice of medicine, requiring supervision by medical practitioners so that all diagnostic facilities are operated by physicians. In conjunction with section 93, this position allows physicians to prohibit access to the facilities, both public and private, by other health professionals. The Seaton Commission identified this practice as a barrier to interdisciplinary practice, on page C-113:

    The Medical Services Commission has generally interpreted the Medical Services Act and the Medical Practitioners Act to mean that only physicians may own laboratories. But we can find nothing in the Medical Services Act to support this interpretation. A non-physician is quite capable of managing the daily operations of a laboratory, and that is, in fact, what happens at present. A pathologist must be available to provide clinical expertise as required. But we believe that laboratories are, in reality, business enterprises, and should be treated as such, rather than as medical practices.

In its Medical Practitioners Act Legislative Review (Preliminary Report) the Council determined that it is inappropriate to give exclusive power of governance over diagnostic facilities to medical practitioners as it has the potential to create unnecessary barriers to interdisciplinary practice. Thus, while the Council appreciates the concerns the section attempts to address, the powers this section creates and the severe remedy that may be imposed go beyond what is necessary to address these concerns.

The problem with section 93(1) is that it creates an outright ban, subject to limited exceptions, when less stringent measures would suffice. For example, in Alberta a physician is able to refer to a non-regulated health professional as long as no harm is caused to the patient:

    A referral to a non-regulated health care provider is acceptable when the physician is satisfied that those services can reasonably be expected to benefit the patient, and not cause harm.

    [College of Physicians and Surgeons of Alberta Policy. Practice in Association. Original: April 1997, updated: March 1998, section (10).]

A complete barrier to interdisciplinary practice is not in the public interest. As the Seaton Commission stated, as long as the non-member does not practice within the profession's scope of practice, there is no reason why a member of a college should not be allowed to work in co-operation with someone who is not a member.

The Chiropractors Act contains a provision that creates a barrier to dual licensure:

    Practice
    21     (1) Subject to subsection (2), a person registered as a chiropractor under this Act must not engage in the practice of the diagnosis or treatment of the human body for disease, or the causes of disease, otherwise than as a chiropractor, unless the person,

    1. first applies to have his or her name stricken from the register of members of the college, and

    2. discontinues the use of the name "chiropractor", whether by way of advertisement or in any other manner that might signify that he or she was practising as a chiropractor within the meaning of this Act.

This provision clearly restricts dual licensure as it prohibits a registrant from practising the profession other than as a registrant of the college unless the registrant has his/her name stricken from the register of members of the college or discontinues the use of the reserved title of the profession. For example, a chiropractor could not practice both chiropractic and physical therapy.

In Ontario, chiropractors are entitled to be members of other health professions, both regulated and unregulated, and the College of Chiropractors of Ontario has enacted a policy to address the regulatory issues. The policy provides, in part:

    Dual registrants are required to inform the patient that the proposed treatment is outside the scope of practice of chiropractic and that the proposed treatment would not be administered in the registrant's capacity as a chiropractor;

    the client/patient must understand in what circumstances he or she is receiving treatment from the dual practitioner in his or her capacity as a chiropractor, and in what circumstances he or she is receiving treatment which is outside the scope of the practice of chiropractic.

    (CCO Policy: P- 018. Dual Registrants. Executive Committee, College of Chiropractors of Ontario. Approved by Council: 29 July 1995, re-affirmed by Council: 1 November 1997.)

In the Chiropractors Act Legislative Review (Preliminary Report), the Council stated that allowing dual licensure and giving the British Columbia College of Chiropractors the power to regulate the matter is more in accordance with the public interest than an outright ban.

In sum, barriers to interdisciplinary practice in any form, and especially in the form of an outright ban, are not in the public interest. This is not to say, however, that individuals members can be compelled to practice with other health professionals, simply that they should not be prohibited from doing so if in their judgment the best interests of the patient would be served by so doing.

2.     Relationship Between Regulatory Body and Professional Association

The Seaton Commission dealt with the issue of membership promotion and self-regulation when it recommended that "two separate bodies be created for all regulated or licensed professions so that there is a clear separation of membership promotion functions and licensing and discipline functions." The Seaton Commission felt that without this separation the public protection function of the college would become blurred with the membership promotion function of the professional association.

The Seaton Commission's views echo those of the report Health Security for British Columbians, Special Report: Consumer Participation, Regulation of the Professions, and Decentralization, the Report of Richard G. Foulkes (Foulkes Report). In a chapter on public regulation and the professions, on page 133, Chapter 3, Tome Three, Professor J.T. McLeod stated:

    It is only reasonable to recognize that professions, like other groups and individuals in society, may well be expected to have certain private self-interests of their own which are not coincident with the public interest. Recognition of a degree of real or at least potential conflict between the private interest of the profession and the public interest is the root of the necessary distinction between the professional or licensing body on the one hand, whose purpose is to enforce standards of quality and service, and the voluntary association of the profession on the other hand, whose legitimate function is to advance the particular interests of the profession and its membership. This important distinction between the public function of the licensing body and the private function of the voluntary association is now widely recognized in Canada. From the standpoint of both the professions and the public, it is desirable that the separation of the two functions be kept sharp and distinct.

The Council agrees with these comments and believes it important that there be a clear separation between the professional association and the regulatory body.

The comparative analysis of the health profession statutes under review illustrated many provisions where the separation between the regulatory body and the professional association was ambiguous and sometimes non-existent. For example, the professional associations for podiatry and optometry have the power to administer the disciplinary authority of the regulatory body and are effectively performing the function of the regulatory body. The professional association for podiatry is charged both with the duty of serving and protecting the public as well as advancing the economic welfare of its members. Under the Optometrists Act, membership with the British Columbia Association of Optometrists is mandatory. Without membership, a person is not entitled to practice optometry. Further, the association is granted professional disciplinary powers over its members.

Another matter arising from the relationship of the regulatory body and professional association concerns college involvement in "economic" or fee-related matters of the health profession. Since health profession colleges are charged with the duty of serving and protecting the public, their participation in negotiating fee-related matters for the health profession could be in direct conflict with their primary duty to the public.

Provisions in profession-specific statutes and regulations which set out unnecessary rules regarding premises for the practice of the profession and provide for restrictive rules regarding advertising are indicative of the regulatory body's interest in the economic affairs of its members. Economic issues affecting the members are a proper concern for the membership association whose essential role is to serve the interests of its members.

In sum, activities of a regulatory body to promote the economic, political and professional interests of its members must not compromise, and should not be seen to compromise, its ability to regulate the profession in the public interest. The HPA relies on a structure that prohibits the melding of roles between the regulatory body and the professional association. Thus, the concerns discussed in this section would be addressed were all professions governed under the HPA .



3.     Power to Approve Educational Programs

In four profession-specific statutes, the regulatory body plays some role in the approval of educational programs. Under the Nurses (Registered) Act, the regulatory body may make rules regarding qualifications for admission to approved schools, and the board must be satisfied as to an applicant's qualifications before she or he may be admitted to an approved school. These functions are beyond the proper scope of the mandate of a regulatory body.

The Council recognizes that the regulatory bodies are knowledgeable about the health profession and can be a valuable and primary resource in designing educational programs. Although it may be appropriate for the colleges to set admission requirements for entry to the practice of the profession and to have input on curriculum development, giving them the power to approve schools is more than the public interest requires. A regulatory body's role in "approval" of educational programs should be limited to approval for the purposes of registration. It should not be given the power to determine whether a school can exist at all. Further, while it is appropriate for a regulatory body to regulate the entry of professionals into practice, it is not necessary or desirable for the regulatory body to have such a role in the admission of applicants to educational programs.

Virtually all health professions are given the power to determine which educational programs meet their educational requirements. In many instances, the regulatory body relies on the opinions of national or international accreditation bodies. The decision as to whether a particular institution will be approved for registration purposes is clearly significant as it can affect many potential registrants and may arbitrarily limit the number of practitioners in the profession. Therefore, it is important that all health professions give careful consideration to this issue and act in the public interest, so as not to use arbitrary standards as a barrier to entry into practice. The Council also supports independent oversight in this area, and believes that rules adopted by regulatory bodies should be subject to cabinet approval.

However, the Council does not believe it is in the public interest to simply remove approval powers from the health profession colleges without ensuring that some body is responsible for approving health profession schools. The solution may be to have the health profession colleges act in an advisory capacity to government, which will have the final decision-making power.





4.     Interim/Permanent Injunction Powers

Section 52 of the HPA provides that a board may apply to the Supreme Court for an interim or permanent injunction to restrain a person from contravening the act, the regulation or its bylaws. The Council dealt with this issue in several preliminary reports. Naturopathic physicians, registered nurses and chiropractors offer no objection to the inclusion in their statute of an injunction power to protect the public from registrants who have violated, are about to, or currently violate the act, regulations or bylaws. This provision is an important public protection measure which should be included in a health profession statute.

In its submission on this provision, the College of Physicians and Surgeons of British Columbia raised an issue about enforcement of professional statutes. That issue is addressed on page 62 in section V of this report "Revisions to the Health Professions Act."





B.     REGISTRATION REQUIREMENTS FOR
         ENTRY INTO THE PROFESSION

Schedule B to the Terms of Reference makes three important points under this heading:

  • First, natural justice and fairness must be reflected in the admission criteria and application process for newly graduated and foreign trained applicants.

  • Second, there must be objective requirements for registration and accreditation of education programs.

  • Third, applicants should have appropriate rights of appeal affecting registration decisions.

1.     Requirement of "Good Character"

The core principle that there must be objective requirements for registration poses a significant issue with respect to the typical registration requirement of "good character" or "good moral character." A number of submissions by the health professions point out the significance of such requirements for registration with a college. For example, one health profession states in its submission:

    ...[T]his requirement is in the public interest. These factors impact significantly on a person's suitability to practice a health profession. Thus the mandate of regulatory bodies should include the right and ability to fully investigate and assess such matters.

Similarly, one regulatory body states that:

    ...[It] is in the public interest as it establishes as paramount the principle that only persons of good character are to be registered with the College.

Essentially, the six health professions that require applicants to be of "good character" or "good moral character" justify it as being in the public interest. The Council's initial concern was that the terms may inject a significant degree of subjectivity into the decision-making process. However, the Council recognizes the need for such provisions and is satisfied that the core principles of professional regulation are not violated. The concept of good character has long been recognized in the common law as an appropriate requirement for registration in professional bodies. The Council emphasizes that this discretionary power be exercised with utmost consistency and fairness.

2.     External Appeal of Registration Matters

One of the core principles under this heading is the provision for appropriate rights of appeal affecting registration decisions. The HPA contains such a right under section 20(4):

    A person whose application for registration as a member of a college is refused by the registration committee may appeal the refusal to the Supreme Court . . .

Six of the health profession statutes reviewed by the Council do not contain an external right of appeal, though some provide for an internal appeal, usually to the college's board. One profession submitted that an external right of appeal is an unwarranted intrusion on a regulatory body's discretion to determine who may become a member of the profession. However, the trends in recent case law indicate that courts do defer to administrative tribunals acting within their area of expertise. Further, given the serious implications of registration decisions which involve the right to practice one's profession, a health profession statute must contain an express right of external appeal from registration decisions.





3.     Registration Process

Section 20(1) of the HPA provides:

    The registration committee is responsible for granting registration of a person as a member of its college.

Several health professions disagree with the registration process under the HPA . Some health professions, generally those with large numbers of practitioners, indicated that the process of registration is an administrative process which is handled by their registrar. Other, generally smaller, professions stated that their board handles all registration decisions directly, without the assistance of a committee or registrar.

Under the HPA , a health profession college must create a registration committee to handle all applications. During the review process, the Council was persuaded that the creation of this committee should be discretionary. For professions in which there are set mechanisms and bodies in place to handle the registration process in a competent manner or where there are very few applications for registration received, a registration committee need not be established. Further, for larger professions where the requirements for registration are so clear that they leave nothing to do for the appropriate committee but to ensure compliance therewith, the registrar can aptly handle this administrative task.

In order to address the concerns raised by the professions, the power to deal with applications for registration ought to be granted to the college boards, and provision made for delegation of that task to either a committee or the registrar. Additional comments regarding the committee structure and the registrar's role under the HPA will be made in the section, "Revisions to the Health Professions Act," commencing on page 54.





C.     QUALITY ASSURANCE MECHANISMS

Schedule B of the Terms of Reference states that there should be:

  • effective mechanisms for monitoring practitioner competency including the ability to set continuing education requirements, and

  • a committee of the board should be responsible for reviewing standards of practice and codes of ethics.

During the review, all health professions provided information about their quality assurance mechanisms. While the programs vary amongst the professions, all have programs in place to maintain professional competence that indicate substantial compliance with this core principle.

For example, the Registered Nurses Association of British Columbia maintains a nurse-client relations program which seeks to prevent professional misconduct of a sexual nature. It also endorses the codes of ethics of both the Canadian Nurses Association and the International Council of Nurses and is involved in a project aimed at updating the codes of ethics. Similarly, the College of Dental Surgeons of British Columbia maintains a patient relations program, a committee with the responsibility for developing a standards of practice document, and has had an ethics committee for four decades. The College of Physicians and Surgeons of British Columbia maintains several committees committed to monitoring practitioner competence, including the Preliminary Review Committee and Sexual Misconduct Review Committee, the Ethical Standards and Conduct Review Committee, and the Committee on Office Medical Practice Assessment.

The Council was impressed by the commitment of all health professions to the task of quality assurance. All appear dedicated to maintaining high standards of excellence and ensuring public protection in the public interest. Two specific issues are worthy of comment.




1.     Continuing Education

Although some professions have mandatory requirements for continuing education, several professions indicated that mandatory education requirements were not the best means of ensuring continuing competency and quality practice. For example, the College of Physicians and Surgeons of British Columbia stated:

    With respect to mandatory continuing education, there is considerable evidence that this does not significantly alter the actual performance of physicians. We would be pleased to provide copies of literature which support this view. In addition, the available mandatory continuing education does not always match the needs of the physician. Rather than mandating participation in specific medical education activities, the College has elected to do evaluations of physicians' actual performance in practice. Programs such as the Office Medical Practice Assessment Program ... and the Triplicate Prescription Program, which monitors the use of narcotics, are examples of such evaluation of performance.

The Council agrees with these comments about mandatory continuing education and accepts that it is only part of the greater goal of ensuring quality practice. Many other mechanisms, such as those described above, are equally if not more effective in ensuring quality practice. These other mechanisms also ensure that a regulatory body can tailor the programs to match the needs of its profession. The core principle regarding quality assurance appears to recognize these other mechanisms, as it states only that that there should be the ability to establish continuing education requirements, not that they should be mandatory. In the final analysis, it is up to each profession, in accordance with its public interest mandate, to determine the appropriate means of ensuring quality practice.





2.     Committee Structure

Several professions indicated that the committee structure under the HPA is too onerous. Section 19(1)(t) states:

    A board may, by bylaw for its college, do the following:

    ...

    (t) establish a registration committee, a quality assurance committee, an inquiry committee, a discipline committee, a patient relations committee, and other committees the board determines are necessary or advisable;...

The British Columbia College of Chiropractors stated that this section imposes onerous administrative structures, and the need for numerous committees when the board of their college is already responsible for matters which may fall within the mandate of such committees. For example, the British Columbia College of Chiropractors stated that its board deals directly with most quality assurance matters. The Council accepts this submission, and agrees that the legislation governing the professions must be sensitive to the administrative burden imposed on regulatory bodies. Unless there is a demonstrated need for a specific committee to deal with an issue, regulatory bodies ought not to be required to create such committees. Section 19(1)(t) appears to recognize this, as it is discretionary, and does not mandate that regulatory bodies establish all of these committees.



D.     COMPLAINTS AND DISCIPLINARY PROCESS

A review of the HPA and the principles outlined in schedule B to the Terms of Reference indicates that a designated health profession's complaints and discipline process must, at a minimum, incorporate the following key elements:

  1. the investigative and adjudicative bodies must be made up of different people and the bodies administered independently;

  2. dissatisfied complainants and registrants must be afforded rights of appeal;

  3. the process must be consistent with the rules of natural justice, and provide for proper notice of a proceeding and a right to be heard; and

  4. the process must not be complex: complainants and registrants must understand how the process works.

Under the existing regulatory system, each health profession has its own complaints and discipline process, and wide variations exist in how disciplinary matters are addressed by the professions. The Council analyzed each profession's system in detail. While some professions generally satisfied the core principles set out in the HPA and Terms of Reference, others fell far short. Further, virtually every profession contained some provisions which were inconsistent with the core principles of regulation. This section contains a summary of the significant issues raised in the Council's review.



1.     Inquiry Committee Procedures

Under the HPA , the inquiry committee is responsible for investigating complaints, and has the power to dismiss the complaint or order that a disciplinary committee be convened to conduct a hearing. Section 33 of the HPA requires that certain minimum procedures be followed by the inquiry committee including investigating a complaint, requesting the registrant who is the subject of an investigation to provide it with any information, and considering such information.

Several health profession statutes do not contain such provisions though most indicated that similar procedures are followed in practice. At least one profession objected to the inclusion of such provisions. The College of Dental Surgeons of British Columbia stated that these requirements would make the "investigating body a decision making body with all the attendant problems", and that an investigating body should not have to observe the rules of natural justice.

However, recent jurisprudence clearly indicates that even in circumstances where natural justice does not apply, procedural fairness does and there is always a duty to be fair. Further, section 33 of the HPA provides basic, minimum fairness requirements, and are far from onerous to apply in practice. All health profession statues ought to contain a similar provision.

However, the Council accepts the submissions of several professions which stated that the requirement for a committee to investigate all complaints is too onerous, and that a more expeditious process is appropriate in many cases. This issue will be discussed further in section V, Revisions to the Health Professions Act, on page 59.





2.     Right to Internal Appeal

The right to an internal appeal refers to the right of a complainant to appeal a decision to dismiss a complaint. Section 34(2) of the HPA provides a complainant with a right to appeal such a decision to the board of a college.
Several of the existing statutes provide rights of internal appeal though some do not. The professions which do not have a formal right of internal appeal indicate that in practice complainants are entitled to request a review. No profession raised significant objections to this provision, and the Council believes that this right should be part of the legislative scheme for all health professions. The right of external appeal through the courts is not economically feasible for many complainants.





3.     Separation Between Investigative and Adjudicative Functions

The core principles dictate that the investigative and adjudicative bodies must be composed of different people and administered independently of each other. Several of the professional statutes contain provisions which are inconsistent with this principle. For example, one health profession statute allows the same persons who initially receive the complaint to adjudicate upon it. Another statute allows the board of the college to initiate investigations, adjourn them and suspend registrants pending disciplinary hearings. Further, the same board can review a complaint after it has been heard, and can make rules "creating discretionary powers related to the discipline and control of currently or formerly registered members". Finally, the council of one health profession's college selects from amongst itself the persons to conduct a hearing, and then determines the penalty to be imposed after the matter has been heard.

Such situations raise the potential for overlap between the investigative and adjudicative functions. Separation of these functions is not only a core principle, it is a fundamental principle of administrative law. The people hearing a disciplinary matter must have no prior knowledge of the subject matter of the complaint or investigation. This principle is embodied in part III of the HPA which provides that the inquiry committee is responsible for investigating complaints and the discipline committee conducts the hearings.





4.     Open Disciplinary Hearings

Section 38(3) of the HPA sets out the general rule that discipline hearings are open to the public. It also sets out the circumstances in which the discipline committee may conduct hearings in camera.

Section 38(3) of the HPA states:

    (3) A hearing of the discipline committee must be in public unless

    1. the complainant or the respondent requests the discipline committee to hold the hearing in private, and

    2. the discipline committee is satisfied that a private hearing would be appropriate in the circumstances.

    (4) At a hearing of the discipline committee,

    1. the testimony of witnesses must be taken on oath, which may be administered by any member of the discipline committee, and

    2. there must be a full right to cross examine witnesses and call evidence in defence and reply.

Sections 23(3) and 12(5)(a) to (d) of the Model Bylaws under the Health Profession Bylaws provide more detail regarding the circumstances in which the public may be excluded from a disciplinary hearing:

    (5) The board may exclude any person from any part of a meeting if it is satisfied that

    1. financial or personal or other matters may be disclosed of such a nature that the desirability of avoiding public disclosure of them in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that meetings be open to the public.

    2. A person involved in a criminal proceeding or civil suit or proceeding may be prejudiced.

    3. Personal matters or property acquisitions will be discussed.

    4. The contents of examinations will be discussed.

    5. Communications with the Office of the Ombudsman will be discussed, or

    6. Instructions will be given to or opinions received from legal counsel for the college, board, or committees.

Several health profession statutes contain a provision requiring that disciplinary hearings be held in the absence of the public. Generally, the professions support closed hearings on the basis of sensitivity and the fear that complainants will be discouraged from bringing forth complaints. The College of Psychologists of British Columbia makes a specific objection:

    Making disciplinary hearings open to the public will be undesirable to a large number of complainants. This is especially true in the mental health area given the still common stigma of mental health problems. While 37(a) and (b) allow non-public hearings in certain cases, it should be obvious that the popular media, depending on the anticipated titillating or scandalous content of the hearing, will fight against closed hearings if there is an opportunity for an open hearing. In fact, the spectre of a public hearing in which one's mental health and/or sexual history are examined and cross-examined may lead to fewer complaints by legitimately harmed patients.

The Council appreciate the sensitivity of disciplinary proceedings, and the potential impact on people's privacy. At the same time, the Council believes it important that these hearings be open to the public in order to ensure that the process is fair and to ensure that the regulatory bodies are fulfilling their mandate to protect the public. That said, the Council appreciates that in certain circumstances, hearings should be closed. That is the purpose of the exceptions described above. Rather than closing all hearings, the Council supports a general rule of open hearings subject to exceptions in specified circumstances.





5.     Mediation and Alternative Dispute Resolution

Section 33(6) of the HPA empowers the inquiry committee to take measures to informally resolve complaints. It states that the inquiry committee may "take any action it considers appropriate to resolve the matter." Section 63 of the Model Bylaws under the HPA sets out procedures for mediation. In addition, section 36 of the HPA empowers the inquiry committee to resolve matters by asking a registrant to make undertakings and consent to a reprimand.

Alternate dispute resolution (ADR) is widely accepted throughout society as a process that promotes settlement of issues without the time, expense and emotional involvement associated with traditional dispute mechanisms. In the courts, increasing recognition of the limits of ordinary litigation as a means of resolving disputes, crowded trial lists and concerns about expense and delay make litigation less attractive. Further, a general consensus appears to have developed that participants in the process appreciate the informality, efficiency and speed with which matters are resolved.

ADR takes different forms. In arbitration, a dispute is submitted to an arbitrator for a decision. Arbitration may be binding or non-binding (advisory). Mediation is also a form of ADR. It is a process for resolving disputes with the aid of a neutral third party. The third party's role is to assist the parties, privately and collectively, to identify the issues in dispute and develop proposals to resolve the disputes.

Several health profession statutes contain provisions for various forms of ADR. Other professions engage in ADR as a matter of practice. Virtually all health professions strongly support ADR. Likewise, the Council is convinced that ADR has a strong role to play in professional disciplinary matters, and broad provisions ought to be enacted in order to grant the necessary powers to the professions to engage in ADR. The Council will discuss this issue further in the section "Revisions to the Health Professions Act," on page 62.





6.     Offences

Section 51(3) of the HPA prohibits prosecution of offences under the HPA after two years. Most health professions statutes do not contain such a provision but little objection was made to this provision. One profession submitted that a two-year limitation is inadequate because many complaints are not made within two years. However, this provision applies to offences under the HPA , not to disciplinary proceedings launched by a regulatory body, and the Council supports the inclusion of this provision.

Sections 13, 19 and 30 of the HPA create offences for practising a profession under the HPA when prohibited to do so, for registering or continuing to be registered as a member when not qualified to do so, and for obstructing an inspector in the lawful performance of his or her duties. Section 81 of the Dentists Act provides that it is an offence for a person to give a public demonstration of skill in the practice of dentistry or to demonstrate or exhibit to the public specimens, models or examples of work. The Council recognizes that the role of a college includes regulating advertising and marketing of services. However, the Council believes that the disciplinary powers of a regulatory body are sufficient to address such matters, and that creating an offence and the stigma that goes with it is more than is necessary to regulate such matters. The offence provisions of the HPA adequately address the matters for which penal sanctions are appropriate.





7.     Uniform Complaint and Disciplinary Process

Quite aside from the issue of consistency with the core principles of regulation, another advantage of the HPA model is that it creates a uniform complaints and discipline process. The Council believes this to be a significant advantage over the present regulatory system. Under the existing regulatory system, each profession is governed by its own professional statute. The terminology used as well as the regulatory structures and processes created vary widely from profession to profession, especially with respect to the complaints and discipline process. This variation and resulting complexity is confusing to the public and registrants. A uniform regulatory system under the HPA would eliminate much of the complexity and confusion, and foster the development of a common jurisprudence for the health professions.

The Seaton Commission on page D-30 made a strong recommendation for establishing a uniform complaints and discipline process among British Columbia 's health professions:

    There is a lack of consistency among the 16 provincial acts that govern the health care professions, despite the fact that all of the colleges established under the acts have the same legislative mandate: to protect the public from preventable harm. Such inconsistency increases the likelihood of variations in judicial interpretations of the acts. Underlying this situation are persistent jurisdictional disputes and a distinct lack of cooperation among the health care professions.

    ...

    In general, a lack of consistency characterizes the acts with respect to complaints, discipline and appeals, resulting in insufficient public accountability, no uniformity in the structure or organization of the different statutes, and an absence of common terms. The areas of greatest inconsistency are:

    - the college's rule-making authority
    - the way complaints are received and addressed,
    - the requirement to report incompetent members,
    - the power to discipline former members,
    - the use of pre-hearing suspensions,
    - the availability of judicial restraining orders or injunctions,
    - the description of the acts or omissions which may lead to a disciplinary action,
    - the type of disciplinary action which may be imposed,
    - the awarding of costs at the end of a disciplinary hearing and the maximum amount which can be awarded,
    - the procedures by which disciplinary hearings are initiated, held and resolved,
    - the member's rights, such as notification of hearings and obtaining a decision with reasons,
    - the procedures to address a member's failure to appear at a hearing,
    - the college's powers at a hearing,
    - the right of appeal, what may be appealed and the limitation period for initiating an appeal,
    - the requirement that an internal review take place prior to initiating an appeal to the Supreme Court and the requirements for such review

    ...

    The Health Professions Act has the potential to influence significantly the future of self regulation of health care professions. Under this new Act, the Health Professions Council can make recommendations to the minister concerning which groups should be granted self-regulation status, their titles, and the extent of their scopes of practice, if any. The Act could be used to create uniform legislative procedures.

In its 1995 report Principles and Recommendations for the Regulation of Health Professionals in Alberta, Alberta's Health Workforce Rebalancing Committee recommended on page 12 (recommendation 10) that,

    [P]rofessional legislation should incorporate a range of structures and processes to address consumer and professional concerns about unethical or incompetent professional practice.

The Committee stated that common structures and processes be established for all regulated health professions and that the processes be as open and as transparent as possible to the complainant and to the public.

Similarly, in the United States the Pew Health Professions Commission (Pew Commission), in its report, Reforming Health Care Workforce Regulation, Policy Considerations for the 21st Century, Report of the Taskforce on Health Care Workforce Regulation, recommended on page 29 that, "[s]tates should maintain a fair, cost effective and uniform disciplinary process to exclude incompetent practitioners to protect and promote the public's health." It also proposed the following policy option:

    Establish uniform complaints and discipline processes for all regulated health professions to ensure that all investigations of complaints are handled in an objective, prioritized, and timely manner. The concerned parties should be informed of the progress of the complaint and investigation on a regular basis.

The Pew Commission found that problems in this area fall into four categories: First, there is insufficient information dissemination to the public; second, complainants are often not informed about the progress of their complaint; third, boards are not seen as vigorously pursuing complaints of health professionals' misconduct or incompetence; and fourth, boards are often criticized for taking too long to resolve a complaint and for imposing inappropriate or ineffective sanctions.

Thus, the Seaton Commission, the Health Workforce Rebalancing Committee of Alberta and the Pew Health Professions Commission call for uniformity in the complaint and disciplinary process of health profession colleges. The Council agrees with these recommendations.





E.     ACCOUNTABILITY MECHANISMS

Schedule B to the Terms of Reference, under the heading, Accountability Mechanisms, states that there should be a requirement for government approval of rules or bylaws. Such a provision is embodied in section 19(3) of the HPA . Further, section 19(5) provides that the Minister may request a board to amend or repeal an existing bylaw or make a new bylaw for the college if the Minister is satisfied that this is necessary or advisable. Section 19(6) of the HPA provides that where a board does not comply with a request under section 19(5), the Lieutenant Governor in Council may amend or repeal the existing bylaw for the college or make the new bylaw for the college.





1.     Cabinet Approval of Rules

Section 19(3) of the HPA provides that a regulatory body's rules do not take effect until they are approved by cabinet. Before addressing the concerns raised, the Council will provide some background regarding the principles of self-regulation.

It is well established that self-regulation is a privilege not a right. Government grants a profession certain rights, such as the exclusive right to use a title or perform certain services, in return for which the profession agrees to regulate the profession in the public interest. As the Seaton Commission stated on page D-29:

    The purpose of regulating members of a profession is to protect the public from preventable harm. The privilege of self-regulation is granted to a profession by the provincial legislature. It is a social contract between the profession and the public. It is the property of the public the profession claims to serve.

    Self government is simply a delegation by the state of its regulatory authority in the professional sphere. (Emphasis added)

In the Supreme Court decision of Costco Wholesale Canada Ltd. v. British Columbia Association of Optometrists, [1998] B.C.J. No. 646, Mr. Justice Lowry emphasized the public nature of a regulatory college's rules:

    The rules are not merely private and non-governmental in nature, but have a direct and indirect public dimension in carrying out the government's regulatory scheme.

In that decision, the Court struck down various rules under the Optometrists Act as being in violation of the Canadian Charter of Rights and Freedoms. The nature of the relationship between self regulatory bodies and the state was also addressed in the Foulkes Report on page 136:

    Thus it is clear that the principle of state primacy over professional decisions has been understood and established over a considerable period of time. In this manner it has been established that the state has not only a continuing and lively interest in the regulation of professions, but that the state has merely delegated to the professions the power of self-government as long as that power is exercised in a manner consistent with the public interest. The state has not abdicated its ultimate authority, but has established the primacy of public legislation over the private regulatory arrangements of the professions.

The government maintains fundamental control over self-regulatory bodies through the legislative process through which it can make, amend or repeal a statute. The government can, at any time, change the regulatory structure. Further accountability mechanisms are frequently enacted through provisions requiring open meetings, public membership on boards and committees, the duty to submit an annual report and review by the ombudsman.

The ability to review and scrutinize regulatory instruments is simply another means by which government supervises the grant of self-regulation.

The Foulkes Report discussed the general issue of accountability on page 135 to 136 and stated:

    [M]ost jurisdictions not only insist that professional law must be public law, as passed by the legislature and reflecting public policy, but also insist that any bylaws, rules or regulations under professional statutes be reviewed by public authorities and if necessary revoked and repealed by the state. For example, since 1948 the Province of Saskatchewan has written into law the provision that any bylaws, rules or regulations passed by the governing council of a profession must be submitted to the Department of the Provincial Secretary within thirty days of being made, and that these bylaws, rules and regulations may be reviewed by the Legislative Assembly. If these supplementary regulations under the Act are found by the legislature to be beyond the power of the professional body, or to be prejudicial to the public interest, they may be revoked and repealed.

The Foulkes report commented on the lack of a mechanism for reviewing professional rules and regulations in British Columbia on page 40, Part Two:

    [A]lthough there can be no doubt that the legislature has the power to amend professional statutes, at present there is no effective agency able to perform a careful, continuous, and detailed review of such statutes and professional regulations.

This led the committee to recommend the creation of a tribunal to scrutinize regulations and revoke such regulations if necessary.

A provision requiring government approval of rules or bylaws is very common in professional legislation. In addition to the HPA , which already applies to several professions, section 5 of the Medical Practitioners Act states:

    (1) The council of the college must govern, control and administer the affairs of the college, and without limiting those powers, may make rules as follows:

    ...

    (4) A rule under subsection (1) has no effect until it is approved by the Lieutenant Governor in Council.

The Dentists Act contains a similar provision in section 28:

    (1) The council may make rules for the governing of the profession of dentistry, the college and registrants and for the carrying out of this Act.

    (2) No rule comes into force until approved by the Lieutenant Governor in Council.

Section 9 of the HPA currently applies to the several professions governed under the HPA many of which have a long history of self-regulation. Virtually all health professions' rules are subject to cabinet approval.

One exception is the Nurses (Registered) Act (NRA). Under the current NRA, the Registered Nurses Association of British Columbia (RNABC) is granted a broad rule-making power. Under section 9, the RNABC has the power to make rules "[f]or the better administration of [the] Act," and for many specific matters, including

  • "curricula and standards of schools of nursing";

  • "qualifications for admission to an approved school of nursing"; and

  • "registration of persons wishing to become registered nurses."

Pursuant to section 9(5) only the rules related to licensed graduate nurses and to the curricula and standards of schools of nursing are subject to cabinet approval. Thus, at present the RNABC has a very broad, unfettered rule-making power.

The RNABC indicates its preference for the current process for rule approval under the NRA and its strong opposition to the HPA process:

    Requiring government control over every substantive structural or process decision is the antithesis of self governance and undermines the concept of professional responsibility and accountability which is at the heart of any profession. Society does not look to professionals as a department of government, but as the repository of skills that are exercised independently of bureaucratic and political influence. A government's role must be limited to ensuring that the professions meet certain minimum standards of accountability, but that does not include "second guessing" every decision of the profession relating to its processes and standards of practice and ethics, in respect of which government has no particular expertise. It is the practising professionals themselves who are the best judge of what the practice standards should be.

    ...

    Having the authority to make rules is obviously in the public interest. Creating impediments to the rule making authority is not in the public interest and in the absence of evidence that the authority is being abused, it should not and need not be changed.

The ability of cabinet to approve professional bylaws is widely recognized. As the various excerpts above indicate, all professional statutes are public statutes and represent the delegation of state powers to independent self-regulatory bodies. They are not primarily for the benefit of the professions but, rather, embody the public interest, and their provisions can have a profound impact on the public. Therefore, the Council supports a requirement for cabinet approval of professional bylaws. That said, the Council sees merit in the RNABC's submission that not every procedural or structural matter need be approved by cabinet. Many administrative and internal issues, such as voting procedures for college elections, banking and financial matters and appointment of officers can properly be dealt with in the absence of cabinet approval. Another issue raised by the professions was the considerable time it takes to receive approval of bylaws or rules. The Council will provide further details on these issues in the section, "Revisions to the Health Professions Act," on page 56.





2.     Cabinet Rule-Making Power

There was widespread opposition to section 19(6) of the HPA , which provides that cabinet may make rules for a health profession. The professions contend that this power is contrary to the principle of self-regulation because it is inconsistent with the notion that expert delegates should formulate rules on professional ethics and practice standards. The professions also state that the provision is contrary to the concept of self-regulation because the Lieutenant Governor in Council should only be vested with a supervisory function in the form of his or her ability to refuse or approve rules of a health profession college.

The medical practitioners summarized the concern as follows:

    In our respectful view, the Lieutenant Governor in Council should not be given the absolute right to impose a rule unilaterally. The concept of self-governance is that rules (and by extension, standards and ethics) are passed by peers and, accordingly, are entitled to some considerable degree of deference by the courts.

    It is our view that the strength and success of self-governance rests with the independence of the profession and to the extent it is weakened or eroded, so too is the credibility of self-governing bodies. There must of course be accountability and, in our view, this is provided for in the M.P.A. At present, section 4(2) of the M.P.A. provides that the Council of the College may make Rules with respect to any of the areas itemized in section 4(2)(a)-(k) of the M.P.A. Pursuant to s.4(5) of the M.P.A., a Rule has no effect until it is approved by the Lieutenant Governor in Council. To this extent, therefore, there is a review process in place.

    The existing M.P.A. provides adequate checks and balances in terms of its committee structure. There is one-third public representation on committees and Council. In addition, there are annual reports by the College to government and the requirement that the Lieutenant Governor in Council approve any changes to the Rules. The government retains control over amendments to the M.P.A. In addition, with respect to the College's procedures, the College is now subject to the jurisdiction of the Office of the Ombudsman.

    Given the above, it is our submission that the H.P.A. provision which gives the Lieutenant Governor in Council the power to amend the College Rules is neither required nor acceptable.

The Council recognizes the important distinction between approval of bylaws by cabinet and by the legislature or some other independent agency. Further, the bylaw-making power set out in section 19(6) of the HPA is clearly a greater power than the power to review and scrutinize regulations.

Although a provision like section 19(6) of the HPA does not appear in any of the individual profession-specific statutes, section 19 currently applies to the several professions governed under the HPA , many of which have a long history of self-regulation.

A similar provision is contained in section 63 of the Pharmacists, Pharmacy Operations and Drug Scheduling Act. The Lieutenant Governor in Council recently exercised its powers under this section on the issue of releasing prescription information for commercial purposes. The College of Pharmacists had proposed that prescription information must not be provided to a third party for any purpose other than patient care without the fully informed, written consent of the pharmacist, patient and prescriber. The Minister's main concern was that with the release of such information under any circumstances, drug companies would be able to target sales presentations to physicians. After negotiations with the college, the Minister recommended to the Lieutenant Governor in Council that release of information for commercial purposes be prohibited. As a result, the Lieutenant Governor in Council passed a new bylaw which effectively overrode the College of Pharmacists' position.

A provision like section 19(6) of the HPA has been in place in Ontario for over twenty five years. Under the Ontario Health Disciplines Act, SO 1974, c. 47 (HDA), which was enacted in 1973, most of the health professions' regulation-making power was subject to ministerial review and cabinet approval. In addition, the HDA also gave the minister the power to review and make, amend or revoke regulations. Section 3 stated:

    3.--(1) It is the duty of the Minister to ensure that the activities of health disciplines are effectively regulated and co-ordinated in the public interest, to have appropriate standards of practice developed and ensure that these are maintained and to ensure that the rights of individuals to the services provided by health disciplines of their choice are maintained and to these ends to,

      c. review proposals by a Council for changes in legislation or regulations of concern to that Council;

      ....

      e. request a Council to make, amend or revoke regulations respecting any of the matters specified in its applicable Part...

    ...

    (2) Where the Minister requests in writing that a Council make, amend or revoke a regulation under clause (1) (e) and the Council has failed to do so within sixty days after the request, the Lieutenant Governor in Council may make the regulation, amendment or revocation specified in the request.

The successor legislation to the HDA, the Regulated Health Professions Act, RSO 1991, c.18 (RHPA) contains similar provisions. Section 95 of the RHPA contains an extensive list of a regulatory body's rule-making powers which are subject to cabinet approval. Section 5(1)(c) of the RHPA provides that the minister may, "require a Council to make, amend or revoke a regulation under a health profession act or the Drug and Pharmacies Regulation Act."

The medical practitioners refer to the Ontario case of Szmuilowicz v. Ontario (Minister of Health) (1995), 24 O.R. (3d) 204, Ontario Court, (General Division), Divisional Court, and submit that the case illustrates the difficulties which arise when regulations are enacted by government rather than by a self-regulating body.

In that case, the Ontario minister of health asked cabinet to pass a regulation making it an act of professional misconduct for a physician to charge a block or annual fee for all uninsured services a physician may provide to a patient. The College of Physicians and Surgeons of Ontario (CPSO) had earlier refused to make such a regulation. The CPSO challenged the regulation in court, and it was struck down.

The basis for the decision was that the government had exceeded its regulation-making power. The statutory provisions in question, though not identical to section 19(6) of the HPA , were very similar in that they granted the Lieutenant Governor in Council the power to make regulations which the CPSO refused to make. The court determined that the Lieutenant Governor in Council's power was not unfettered. Rather, the power must be exercised with due regard for the purpose and intent of the statute. In Szmuilowicz, the court found that the government's purpose in enacting the regulation-to ensure accessibility and prevent abuses of "extra-billing"-was not consistent with the purposes of the Medical Practitioners Act. A key factor in the court's decision was the extensive evidence that the profession did not consider block billing to be professional misconduct.

The court discussed the limits of ministerial rule-making power and stated:

    When the Minister sees fit to override a determination made by a self-governing body of professionals authorized by the legislature to determine such issues, the views of the self-governing body of the profession should be taken into consideration by the court in determining whether the Minister pushed the definition of "professional misconduct" beyond permissible limits, given that the term is peculiarly defined by the standards of the profession...

The court found in this case that the minister must be careful not to overstep the limits of his or her rule-making power, but the rule-making authority itself was not put in question.

The College of Physicians and Surgeons of British Columbia submits that this case illustrates the difficulties that can arise when the government attempts to define what is ethical. Clearly, the court in Szmuilowicz was not satisfied with the government's views on the issue of block billing, and the government was specifically rebuked for ignoring the views of the CPSO. The Council believes that the important principle to be extracted from this case is that the powers created by such a section are not unfettered but must be exercised having regard to the purpose of the statute and only after considering the regulatory body's position on the issue. In short, government cannot override a professional college's views on an issue without good reason. Thus, the case provides an important series of checks on the cabinet's rule-making power and demonstrates the court's willingness to intervene when the cabinet fails to accord appropriate deference to a professional college.

Thus, judicial review as applied in the Szmuilowicz case simply provides for another safeguard for the health professions, namely the courts' willingness to review the minister's discretion in making rules for a health profession college. Clearly, the minister's rule-making power is not unfettered.

While the professions recognized and accepted that the legislature has ultimate supervisory control over the professions since it can amend statutes, they felt that granting rule-making authority to the government of the day created a potential for improper political interference. The Council believes these concerns to be overstated. The Ontario government has had the rule-making power for 27 years, and the Council is aware of only one instance of its use, and that was in the Szmuilowicz case. There, the court overturned the ministry's attempt to impose a bylaw and set out specific limits on the rule-making power of the minister. It is important that government maintain ultimate supervisory authority over the powers it has delegated to the professions. In the Council's view, the order-in-council process required to make a rule or bylaw, along with the ability to seek judicial review of such decisions, provides a sufficient check on the exercise of governmental powers under this subsection.



3.     Public Access to Register and Bylaws

The issue of public access to the college register and bylaws was considered in a number of preliminary reports. Section 22 of the HPA provides for open access to the register. Objections were made to this provision because present registers of health professions contain various personal information of registrants, such as home phone numbers and addresses. The Council understands the privacy concerns but is of the view that such issues can be addressed through the design and operation of the register. It is important that a regulatory body keep a publicly available and up to date record of members' names and business addresses, as well as their registration status. The Council will suggest an amendment to this provision in the section on "Revisions to the Health Professions Act," below.





F.     THE HEALTH PROFESSIONS ACT BYLAWS

The Terms of Reference direct the Council to conduct a comparative analysis of the HPA with each professional statute, along with any relevant rules, regulations or bylaws, in order to ensure that they contain the core principles of professional regulation. The Terms of Reference also indicate that the HPA embodies those core principles of professional regulation which the Minister considers are desirable or essential for regulating the profession in the public interest.

In the initial phase of the review process, the Council also considered the HPA draft bylaws. These bylaws are distributed to newly designated professions as a guide for drafting bylaws for their new regulatory colleges. Several questions in the Council's comparative analysis referred to the draft bylaws. The Council informed the professions that although the bylaws were not legally binding, they reflected the ministry's view of provisions which were desirable for regulating a profession in the public interest.

During the review process, the original draft bylaws were substantially rewritten and many provisions were removed and some added. This complicated the Council's process as its initial questions referred to the original draft of the bylaws. The revisions also underscored the fact that the bylaws were not legally binding and subject to modification, making it somewhat difficult to assess which bylaw provisions embody core principles of professional regulation.

Nonetheless, many provisions appear in both versions of the draft bylaws and are also consistent with the core principles discussed in the Terms of Reference. The Council felt it important to note where provisions in the various health profession statutes could be considered inadequate, incomplete or missing having regard to the draft bylaws. The Council has decided to include its account of such provisions in this separate section in order to reflect the fact that the bylaws have a different legal status than the HPA .





1.     Open Board and Committee Meetings

Bylaw 11(2), now bylaw 12(4) of the HPA , states that "...the meetings of the board must be open to registrants and to the public." Further, bylaw 12(4), now bylaw 23(3), states that "...meetings of a committee must be open to registrants and to the public."

The Council received objections to the requirement of open board, committee and panel meetings. One membership association expressed concern about telephone conferences and meetings of committees such as an education committee or a legislative and government affairs committee whose subject matters are not necessarily matters for public dissemination. Some regulatory bodies stated that keeping committee meetings open to the registrants and the public will unduly disrupt and delay the proceedings and constrain the candor of the discussion. One regulatory body submitted that openness concerns are already addressed, since the public may have copies of the minutes of its board subject to the Freedom of Information and Protection of Privacy Act, RSBC 1996, c. 165. Another health profession college contended that the public is sufficiently represented through the one-third public representation on its board and disciplinary committee hearings.

The Council previously indicated its support for public disciplinary hearings on page 29 above. Similarly, the Council believes that, as a general rule, meetings of the board, the registration and inquiry committees should be open to the public subject to the exceptions set out in bylaws 12(5)(a) to (d). To the extent that other research or policy committees may be established, the Council believes that their meetings need not necessarily be open to the public.



2.     Public Membership on Committees

HPA bylaws 14(2), 15(2), and 16(2), 17(2), 18(2) and 19(1) provide that the registration, discipline, inquiry, quality assurance, patient relations and executive committees must have at least one-third public membership. Most professions objected to this provision on the basis that the issues under consideration are best judged by a panel of peers and that significant delays may occur in seeking public members for panels. In the Council's view, public membership on major committees is an important public accountability measure and should be included in the professional statute.

3.     Mandatory Liability Insurance

HPA bylaw 97 provides for mandatory liability insurance. Virtually all health professions agreed on the importance of this provision. However, one college suggested that the standard amount of $1 million be omitted, as different health professions require different coverage. The Council notes however that the $1 million requirement is stated as a minimum requirement for liability insurance coverage.

4.     Discipline Committee Records

HPA bylaws 65 and 66 provide that the registrar must keep records of the results of all investigations of the inquiry committee and all decisions of the discipline committee. The bylaws further provide that the discipline committee must record and transcribe its hearings, that the board must publish a notice on the disciplinary proceedings and that the registrar must notify the colleges or associations responsible for the regulation of the profession in other jurisdictions if the proceeding resulted in a limitation or suspension of a registrant's practice. The only comment the Council received suggests that there should be a discretion extended to the health profession colleges not to disclose discipline decisions and records thereof in certain circumstances.

The Council accepts this suggestion but stresses that any discretion be confined to well-defined circumstances. In this regard, Schedule 2 of the Regulated Health Professions Act of Ontario, which is the Health Professions Procedural Code, sets out procedural rules applying to all health professions in Ontario. Section 56 provides for the publication of the Discipline Committee's decisions:

56.(1) The College shall publish a panel's decision and its reasons, or a summary of its reasons, in its annual report and may publish the decision and reasons or summary in any other publication of the College

(2) In publishing a decision and reasons or summary under subsection (1), the College shall publish the name of the member who was the subject of the proceeding if,

(a) the results of the proceeding may be obtained by a person from the register; or

(b)the member requests the publication of his or her name

(4) The College shall not publish the member's name unless it is required to do so under subsection (2)

Further, section 23(3) of the Ontario Health Professions Procedural Code states:

(3) A person may obtain, during normal business hours, the following information contained in the register:

1. Information described in clauses (2) (a) to (c)

2. Information described in clause (2) (d) relating to a suspension that is in effect

3. The results of every disciplinary and incapacity proceeding completed within six years before the time the register was prepared or last updated,

i. in which a member's certificate of registration was revoked or suspended or had terms, conditions or limitations imposed on it, or

ii. in which a member was required to pay a fine or attend to be reprimanded or in which an order was suspended if the results of the proceeding were directed to be included in the register by a panel of the Discipline or Fitness to Practise Committee

3.1 For every disciplinary proceeding, completed at any time before the time the register was prepared or last updated, in which a member was found to have committed sexual abuse, as defined in clause 1 (3) (a) or (b), the results of the proceeding....

These provisions may serve as a blueprint for similar provisions in the HPA which the Council believes should distinguish between a disclosure by the Inquiry Committee and disclosure by the Discipline Committee. The Inquiry Committee is, for the most part, an investigative body, and its proceedings precede the laying of formal charges. However, decisions of the Discipline Committee should generally be available to the public



G.     CONCLUSIONS FROM COMPARATIVE ANALYSIS

In the preceding section, the Council has discussed generally the issues raised by the Council's comparative analysis of the health profession statutes. Volume II contains detailed reports for each individual profession regarding their particular statute

The comparative analysis indicated that the professions under review fell into two distinct categories. The first group consisted of those professions whose statutes were so deficient when compared with the minimum requirements set out in the HPA and the core principles that there was little reason to consider trying to amend the statute so as to make it acceptable. These statutes are the Optometrists Act and the Podiatrists Act.

The second group consisted of professions whose statutes by and large met the standards set out in the HPA and the core principles. In some cases these statutes contained provisions that are in the public interest but are not contained in the HPA. These statutes are the Chiropractors Act, the Dentists Act, the Nurses (Registered) Act and the Medical Practitioners Act.

As noted above, however, the comparative analysis is only part of the legislative review process. The other concerns are the desirability of minimizing the number of statutes that govern health professions and the onus on the professions to justify the need for a separate statute. These latter concerns are addressed in the next section of this report, "Designation under the Health Professions Act".





IV.     DESIGNATION UNDER THE HEALTH PROFESSIONS ACT

A.     POLICY FRAMEWORK

In considering the issue of whether a profession should be designated under the HPA, the Council was directed to consider not only the comparative analysis but also the general policy that designation is the favoured option and that a profession must justify a continuing need for a separate statute. The Council would like to expand on this important issue.

Under the existing regulatory system, each profession is governed by its own professional statute. The terminology used, as well as the regulatory structures and processes created, vary widely from profession to profession, especially with respect to the complaints and discipline process. This variation and resulting complexity is confusing to the public and registrants. A uniform regulatory system under the HPA would eliminate much of the complexity and confusion and foster the development of a common jurisprudence for the health professions.

Several recent reports of royal commissions and government policy statements in several provinces have emphasized that an integrated approach to the delivery of health care is in the public interest. Co-ordination and co-operation amongst health care providers is of fundamental importance to such an approach, and a uniform regulatory structure enhances the government's ability to apply health care policy consistently.

One policy initiative for which co-ordination and consistency is particularly relevant is the scope of practice review process the Council recently completed. The ministry requested that the Council review the scopes of practice of the existing professions with a view to implementing a new regulatory framework for health professions in British Columbia. The key elements of the new framework are broad, non-exclusive scope of practice statements and narrowly defined reserved acts. Reserved acts are those elements of a profession's scope of practice which present such a significant risk of harm that they should be reserved to a particular profession that is qualified to perform them. The new system will create shared scopes of practice, and it is likely that many of the reserved acts will be shared amongst particular professions. A uniform regulatory structure would ease the implementation of the new model of professional regulation.

A general policy favouring a uniform regulatory structure was referred to in the report of the Seaton Commission on Health Care in British Columbia. The relevant excerpts from that report are set out on page 11 of this report.

The Seaton Commission concluded that the existing health professions acts be repealed and the HPA be revised to serve as the umbrella act for regulating health professions.

The general policy of legislative uniformity is also consistent with initiatives in several other provinces-notably Ontario, which has implemented umbrella legislation for the health professions, and Alberta, which is in the process of approving umbrella legislation. The Council agrees with these statements about the desirability of uniformity in legislation and accepts that, as a general rule, designation under the HPA is the preferred option. This general policy favouring designation is embodied in the Terms of Reference which refer to the desirability of a "high degree of consistency between statutes" and of "minimiz(ing) the number of statutes that apply to the governance of health professions." Indeed, the Terms of Reference and attached criteria and guidelines make it clear that the Council is to consider whether there are unique features of the profession or other relevant factors that justify a need for a separate statute.

However, the Council again emphasizes that although the policy preference is for uniform legislative structures, the HPA model still embodies a strong commitment to self-regulation through the "college" system of regulation.





B.     THE PROFESSIONS' SUBMISSIONS

All of the health professions subject to the Council's legislative review opposed designation under the HPA. Most health professions voiced strong objections while a few conceded to the possibility that designation under the HPA and the repeal of their profession-specific statute may be beneficial to their profession. Towards the completion of the process, almost all professions appeared to accept the notion of uniform legislation and indicated that they would be willing to accept designation under the HPA so long as all professions come under that statute and provided that certain suggested changes were made to the HPA. The following are some of the objections to designation the professions raised during the review process.

1.     Tradition and Jurisprudence

Some health professions argue against designation under the HPA by asserting a long history of regulation. One health profession feels that inclusion under an umbrella act such as the HPA would be "a slight on (the health profession's) individuality, uniqueness and historical right to self-regulation."

All the larger health profession colleges advance the argument that designation of their profession under the HPA would erase valuable existing jurisprudence about their profession. They believe the jurisprudence is evidence of a "proven track record and considerable judicial comment of weighty precedential value." One health profession opposes designation under the HPA by arguing that, "(n)early 100 years of innovation and evolution in the provisions ... would be lost with no appreciable advantages to the public."

Despite requests for additional information, the Council was not provided with specific examples of precedents that would be lost and the effect that would have on the colleges' processes. Further, decisions by the courts in respect of interpretation of the statute and in particular interpretation of procedural provisions, rarely assess the merits of the provisions. Rather, such decisions take the provisions as granted and simply determine whether they have been applied properly.

In sum, the Council does not believe that tradition and decades of self-regulation are adequate reasons for continuing separate health profession statutes. The Council has already explained that the HPA still embodies a commitment to self-regulation. Thus, there exists no such "historical right to self-regulation." Similarly, the arguments about the existing body of precedent under a health profession statute do not justify the retention of a separate statute. No submissions were presented which supported the proposition that significant judicial precedent would be rendered inapplicable and there seems no rational reason why it should.

2.     Size and Complexity

Most health professions contend that the HPA was enacted to deal with new and emerging professions that need an initial regulatory framework. They state that the HPA was not meant to apply to traditional health professions with a sizable membership and a sophisticated regulatory framework that has served the public interest for many years.

While the initial focus of the HPA was new and emerging professions, nothing in the HPA restricts its application to new professions. Further, the Terms of Reference clearly indicate that the government is contemplating uniform legislation for the health professions, and it has directed the Council to use the HPA as the its template for assessing the quality of the existing professional statutes. Finally, the Seaton Commission stated on page D-30:

The commission recommends that ... the existing health care profession acts be repealed and a revised Health Professions Act become the umbrella act for regulating all health care professionals ...





3.     Uniqueness

The Council encountered many declarations of "uniqueness" by the health professions. One health profession claims a unique philosophy which would be lost under the HPA, while another lists a number of factors that make it a unique profession, including size, efficient rule-making structure and policy framework. Other health professions simply declare their uniqueness and assert that designation under the HPA will destroy their unique characteristics.

The Council acknowledges that each health profession is unique. However, the Council asked each health profession to explain how their uniqueness justifies the retention of separate health profession statutes. None of the health professions claiming uniqueness described specifically how such unique factors support the continuing need for a separate statute.

The only health profession that presented convincing arguments of uniqueness was emergency medicine. Emergency medical assistants (EMAs) are not self-regulated but, rather, regulated by government. Further, there is only one employer for EMAs, a government body, not a private institution. Training for EMAs is job-specific and standardized because it is provided by only one facility. Also, registration criteria are not as relevant for EMAs, as hiring and licensing takes place only to fill a vacancy. Finally, in Ontario, which has adopted umbrella legislation for health professions, ambulance services continue to function under separate legislation.





C.     CONCLUSIONS

In terms of the Council's analysis of the individual statutes in light of the core principles, the professions fall into two distinct categories so far as the quality of their legislative schemes is concerned

The first group consisted of professions whose statutes were so deficient when compared with the minimum requirements as set out in the HPA and the core principles that there was little reason to consider trying to amend the statute so as to make it acceptable. This group includes Optometry and Podiatry.

Therefore, the Health Professions Council recommends that the Optometrists Act and the Podiatrists Act be repealed and those professions designated under the Health Professions Act.

The second group consisted of professions whose statutes, by and large, met the standards set by the HPA and which presented valid concerns with respect to uniform legislation. These concerns were largely focused on the notion that uniform legislation which does not include all professions is not an improvement over the present regulatory model. Further, several of these statutes contain provisions that are definitely in the public interest but are not contained in the HPA. To simply designate these professions without making changes to the HPA would be contrary to the public interest. Thus, although none of the professions provided a persuasive submission that their profession was so unique as to justify a separate statute, they did present compelling reasons why, at the present time, designation under the HPA was not in the public interest and it would be appropriate to retain their separate statutes.

This second group includes Chiropractic, Dentistry, Medicine and Registered Nursing, all of which would have difficulties operating under the HPA as it currently stands. Each of them has a statute which meets the required standards of the HPA, and the public interest does not favour designation under the HPA unless various concerns with the provisions with the HPA, as it applies to the professions, are addressed. Those concerns are discussed in the following section of this report, "Revisions to the Health Professions Act," on page 54.

Therefore, the Health Professions Council recommends that the Chiropractors Act, the Dentists Act, the Medical Practitioners Act and the Nurses (Registered) Act be repealed and those professions designated under the Health Professions Act as soon as revisions are made to the Health Professions Act to reflect the unique features of those professions.

As discussed on page 51 only emergency medical assistants were able to convince the Council that the public interest is best served if they continue to be regulated under their Health Emergency Act. The Council was generally not persuaded that any other profession had provided sufficient rationale.

Therefore, the Health Professions Council recommends that the Health Emergency Act not be repealed, and the profession of emergency medical assistance not be designated under the Health Professions Act.





V.     REVISIONS TO THE HEALTH PROFESSIONS ACT

Several of the Council's preliminary reports contained a separate section addressing suggested revisions to the HPA. For the most part, these represent either deficiencies in the HPA or provisions in other health profession statutes which represent an improvement of the HPA. The suggestions were made by several professions and represent areas in which the HPA should be changed in order that the present regulatory colleges may better protect the public interest. There are other areas in which changes to the HPA should be considered. These include changes with respect to the "reserved acts model" as described in the Terms of Reference and the issue of mandatory membership. Finally, the Council will also make recommendations about changes to the Health Emergency Act. These include changes with respect to the "reserved acts model" as described in the Terms of Reference and the issue of mandatory membership.



A.     CRITICISMS OF THE HEALTH PROFESSIONS ACT

1.     The Registration Process and the Registrar's Duties and Powers

Section 20(1) of the HPA provides that the Registration Committee is responsible for granting registration to applicants. The Council received useful criticism of this provision. The Registered Nurses Association of British Columbia (RNABC) believes its model to be more effective than the one found in the HPA. The RNABC utilizes three entities in the registration process: a registration committee, a membership review committee and a board of examiners. However, most applicants are registered through a simple administrative process carried out by the registrar upon satisfaction of the applicable rules. The RNABC submits that it cannot possibly review all applications by way of the HPA process because of the number of applicants.

Similarly, the College of Dental Surgeons of British Columbia (CDSBC) states that registration is generally an administrative task which can be handled by the registrar. The requirements for registration are explicitly set out in the Dentists Act Rules, and applicants who meet the requirements are registered. Only in non-standard situations is the registration committee required to deal with an application.

The Council agrees that for larger professions such as registered nursing, dentistry, psychology and medicine, a committee need not consider every application. It is evident that the criteria for registration are widely known and transparent, leaving nothing for the appropriate committees to ensure compliance with. In these circumstances, each application need not be reviewed by a registration committee.

Therefore, the Health Professions Council recommends that section 20 of the Health Professions Act be modified to provide for a more flexible registration process, which would allow the registration committee to delegate approval of applications to the Registrar

2.     The Complainant as a "Party" to a Disciplinary Hearing

A pressing concern amongst the health professions is section 38(2) of the HPA which provides that the complainant in a disciplinary matter may appear as a party. Many professions objected to this provision. For example, the College of Dental Surgeons of British Columbia states:

A disciplinary hearing in this regard is akin to a criminal trial. In a criminal trial the victim is not a party; the only parties are the Crown and the accused.

That is because the Crown is the party aggrieved by the breach of the Criminal Code and the party with the obligation to enforce the Criminal Code. Those are not the roles of the victim. While it is important that the Court in criminal matters hears from the victim during sentencing as to impact, the victim should otherwise be a witness and not a party.

The same applies to disciplinary hearings. It is the duty and obligation of self regulating professions to prosecute members who act inappropriately on behalf of the public as a whole. It is the profession that is aggrieved by a breach of the professional standards of the profession because it brings the profession into disrepute. People who complain to the College are important to that process as they initiate the investigation, but thereafter, a complainant should only be a witness to the College's disciplinary actions. There is a very real possibility that if a complainant is given party status at a disciplinary hearing their focus will not be on protection of the general public, but on their own interest. A disciplinary hearing may be used by a complainant as an examination for discovery in aid of a civil action against the member.

The British Columbia College of Chiropractors states:

The purpose of appeal rights and hearings in professional regulation is to provide the member and college with the ability to address errors of law, jurisdiction, natural justice or fundamental misapprehension of evidence at the first instance. As a witness, the complainant is not a party to the discipline process and as such does not have any appeal rights.

The Registered Nurses Association of British Columbia, the British Columbia Nurses' Union, as well as the College of Physicians and Surgeons of British Columbia make similar comments about this issue.

The Council agrees with these submissions. Although the complainant plays an important role in the discipline process, the regulatory body is responsible for prosecuting the complaint, and a complainant should not be a "party" to the proceeding. It is important that the focus of disciplinary hearings remain professional standards and the public interest, and that the process not become a substitute for personal actions in the courts. Nonetheless, the Council believes that the HPA and the core principles indicate the importance of involving the complainant in the process. In particular, complainants should have the right to appear at disciplinary hearings.

Therefore, the Health Professions Council recommends that the Health Professions Act be amended to remove the right of the complainant to appear as a party.




3.     Appeal Right from a Decision of the Discipline Committee

Section 40 of the HPA provides that any person "aggrieved or adversely affected" by a decision of a discipline committee has a right to appeal the decision. The Council agrees with the submission of the British Columbia College of Chiropractors that the term "aggrieved or adversely affected" contained in section 40 of the HPA may be too broad and may encompass persons who ought not to be entitled to an appeal.

Therefore, the Health Professions Council recommends that section 40 of the Health Professions Act be amended to restrict the right of appeal to the parties in a disciplinary hearing

4.     Cabinet Approval of Bylaws

The Council has previously discussed the issue of cabinet approval at length in the section, "Accountability Mechanisms," on page 35. After reviewing the legislation and the insightful comments by the health professions in their submissions, the Council is of the view that many matters of professional governance are routine and need not be subject to heightened scrutiny, as they do not raise issues of concern to the public. Such matters are administrative and would include voting procedures for college elections, banking and financial matters and appointment of officers.

The Seaton Commission recommended that not all rules need be approved by cabinet. In its chapter on professional regulation on page D-31 it stated the following matters need not be subject to cabinet approval:

  1. adopting a college seal;
  2. executing documents;
  3. approval of banking and finance;
  4. selecting committees and procedures for election to committees;
  5. regulating meetings of the college and its committees;
  6. appointing officers and the delegation of college powers to those officers;
  7. prescribing forms for internal use;
  8. arranging for indemnity insurance;
  9. regulating membership fees; and
  10. authorizing grants

Similarly, Ontario's Regulated Health Professions Act (RHPA) provides a useful guide in sections 94 and 95 of the Procedural Code to matters which should be subjected to additional scrutiny. Section 94 sets out the matters not requiring cabinet approval. The Council agrees that not all matters relating to a regulatory body need be subject to cabinet approval and that the report of the Seaton Commission and section 94 of the RHPA provides a useful guide in this regard.

Therefore, the Health Professions Council recommends that section 19 of the Health Professions Act be revised to create a category of matters for which cabinet approval is not necessary.




5.     Delay in Rule Approval

Another issue related to section 19 of the HPA is delay in the rule approval process. Section 19(7) states:

(7) A bylaw may not be made, amended or repealed under subsection (3) or (6) unless notice of the proposed bylaw, amendment or repeal is given to the college of each health profession prescribed for the purposes of this subsection.

  1. at least 3 months before the bylaw, amendment or repeal comes into force, or

  2. within a period, shorter than that set out in paragraph (a), that the minister specifies as appropriate in the circumstances.

This is the only provision in the HPA that touches on the issue of the time for approval of bylaws. Many professions have expressed serious concern regarding the amount of time it takes for rules, regulations and bylaws to be approved. The Council accepts this concern. Lengthy delays inhibit regulatory bodies' ability to regulate and are not in the public interest. Some professions suggested that a provision be enacted stating that rules proposed by regulatory bodies automatically take effect within 90 days of submission, unless the government indicates, in writing, specific objections to the rules. While the Council is not prepared to recommend the adoption of such a provision, the issue of delay in bylaw approval should be addressed in some manner.

Therefore, the Health Professions Council recommends that the Minister of Health and Minister Responsible for Seniors take steps to address the issue of delay in the bylaw approval process.




6.     "Professional Misconduct", "Conduct Unbecoming" and "Sexual Misconduct"

There are several references in the comparative analysis to the terms "professional misconduct" and "conduct unbecoming." Neither the HPA nor the current draft bylaws use the term "conduct unbecoming." However, the HPA refers, for example in section 33(4)(c), to professional misconduct.

In his book, The Regulation of Professions in Canada (Carswell, 1994), James Casey notes that both terms are well recognized in the law of professional regulation. Professional misconduct has been generally accepted to relate to conduct while actually engaged in the practice of the profession, while conduct unbecoming relates to conduct not in the course of the practice of the profession. The Council accepts that in some cases conduct occurring outside the practice of one's profession may be cause for disciplinary proceedings by a professional college. In such cases, however, the conduct must be relevant to a member's suitability to practice the profession.

Therefore, the Health Professions Council recommends that disciplinary provisions of the Health Professions Act be clarified to ensure that they encompass both "professional misconduct" and "conduct unbecoming."




7.     Reporting and Investigation Requirement of Investigative Committee

In the course of the legislative review process, the Council has determined that the initial intake process for complaints under the HPA ought to be clarified. Section 33 of the HPA appears to provide that all complaints must be investigated.

Many professions found this requirement too onerous. One college states that it employs an intake person for all complaint matters, and this person is responsible for screening complaints. The college states that in 1995, of 133 specific concerns received, only 30 resulted in formal complaints. Another college states that it receives approximately 1400 phone complaints and 400 written complaints each year, and that it is simply not possible for a committee to fully investigate all complaints. It also states that its registrar is successful in mediating many of the complaints.

The Council agrees that a requirement that all complaints be investigated by the inquiry committee is not an effective use of a health profession college's complaints and disciplinary processes. The College of Physicians and Surgeons of British Columbia states that under the Medical Practitioners Act, the registrar has the power to resolve "minor" complaints.

In the Council's view, the HPA does not intend that the inquiry committee must conduct an investigation in all cases but intends that some matters could be resolved by the registrar. For example, the HPA provides that the registrar is an inspector, pursuant to section 27(2) of the HPA. Pursuant to section 32(2), the registrar is mandated to deliver to the inquiry committee a copy of the complaint, an assessment thereof and any recommendations for the disposition of the complaint. The HPA intended that the registrar would be able to deal with minor complaints summarily, and the inquiry committee would only need to conduct an investigation in cases where the registrar refers the matter to that committee. The Council agrees that a registrar or other designate can play an invaluable role in the initial handling of complaints. In short, the Council supports an enhanced role for the registrar in dealing with complaints in the first instance.

The HPA should be amended to clearly provide for an initial summary review process by a designated staff person such as the registrar. That person should be empowered to dismiss the complaint where the matter is beyond the mandate of the regulatory body or where the matter is trivial, frivolous or vexatious. However, the Council believes that any summary review process must provide that decisions to dismiss complaints are subject to an internal right of appeal to either the board of the health profession college or the inquiry committee.

Therefore, the Health Professions Council recommends that the Health Professions Act be revised to include provision for a summary review process for complaints and a related provision for an internal appeal from a dismissal of a complaint through the summary review process.




8.     Written Reasons for Disciplinary Orders

Section 39(2) of the HPA provides that an order of the discipline committee on a hearing must be in writing and delivered to the respondent and the complainant, if any

The College of Dental Surgeons of British Columbia makes a good point about the section. It submits that a simple order is not enough and that, generally, the common law requires that reasons be provided. The Council agrees that written reasons are an important aspect of the discipline committee's function and notes the comments of Madame Justice L'Heureux-Dubé in the recent case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817:

Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review. ... Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given. ...

The Council agrees with these views.

Therefore, the Health Professions Council recommends that the Health Professions Act be amended to include a requirement that discipline committees issue written reasons for decisions made during disciplinary hearings.




9.     Particulars of Evidence

Section 37(1)(b) of the HPA requires that particulars of evidence be included in the notice of citation for a disciplinary hearing

Several professions indicated that this requirement is not practical. For example, the College of Physicians and Surgeons of British Columbia states:

Evidence continues to be gathered following the issuance of charges and we perceive procedural difficulties with continued amendments to the charges issued. In our view, it is appropriate for a disciplinary charge to allege the elements of the offence but not all of the evidence to be led in support of the charge. Counsel for the College are directed to give disclosure of "particulars", including witness statements, documents, etc. either concurrently with the charge or within a short period after its issuance. There is no question that the accused member is entitled to the process but rather to the legislative requirement that particulars of any evidence form part of the charge or citation

The Council agrees with the criticism that the requirement in section 37 of the HPA regarding particulars of evidence may impair the disciplinary process. However, the Council believes that it is important that the citation include a copy of the charging document. Further, this matter raises the important issue of disclosure of evidence which is not dealt with thoroughly in the HPA. In the Council's view, a fundamental requirement of a fair disciplinary process is that members be apprised of the evidence in support of disciplinary charges at a reasonable time prior to the hearing. Such a provision is embodied in section 42 of Ontario's Health Professions Procedural Code which provides:

(1) Evidence against a member is not admissible at a hearing of allegations against the member unless the member is given, at least ten days before the hearing,

  1. in the case of written or documentary evidence, an opportunity to examine the evidence;

  2. in the case of evidence of an expert, the identity of the expert and a copy of the expert's written report or, if there is no written report, a written summary of the evidence; or

  3. in the case of evidence of a witness, the identity of the witness

This provision provides a good model for a similar process which should be included in the professional statute

Therefore, the Health Professions Council recommends that the Health Professions Act be amended to adopt a provision similar to section 42 of Ontario's Health Professions Procedural Code which provides that:

(2) Evidence against a member is not admissible at a hearing of allegations against the member unless the member is given, at least ten days before the hearing,

  1. in the case of written or documentary evidence, an opportunity to examine the evidence;

  2. in the case of evidence of an expert, the identity of the expert and a copy of the expert's written report or, if there is no written report, a written summary of the evidence; or

  3. in the case of evidence of a witness, the identity of the witness.




10.     Mediation and Alternative Dispute Resolution

Section 36 of the HPA provides for resolving disciplinary matters through the use of registrant's undertakings or upon consent. Section 33(6) empowers the inquiry committee to take measures to indirectly resolve complaints. Several professions submitted that while they strongly support the principle of resolving matters without a hearing, this section was not clear enough or broad enough in scope. The Council agrees and is of the view that the undertakings permitted should be expanded to include such matters as "the requirement to consent to a psychiatric assessment or other medical examinations, to take counseling with a psychologist or psychiatrist, to attend educational or remedial programs, etc.," and believes the HPA should be amended to include a wider scope for alternative dispute resolution.

Therefore, the Health Professions Council recommends that the Health Professions Act be revised to include specific provisions for fostering use of alternative dispute resolution, including mediation.




11.    Power of Interim/Permanent Injunction

Section 52 of the HPA provides that a board may apply to the Supreme Court for an interim or permanent injunction to restrain a person from contravening the act, the regulation or its bylaws. The College of Physicians and Surgeons of British Columbia states that the provision creates grounds for suspicion of "turf protection" and that the provision may be seen as "self serving."

The Council agrees that the issue of enforcement, particularly in regard to performing services which should only be carried out by registered health professionals, needs to be clarified. In the Council's view, enforcement of proceedings regarding improper performance are best left to the discretion of the attorney general, as has been the practice with respect to unregistered persons practising medicine. However, the Council sees no reason not to include the power to see injunctions in professional legislation, so that the professions can seek remedies against persons contravening their rules, regulations or bylaws.

Therefore, the Health Professions Council recommends that the Attorney General be given the authority to enforce the provisions prohibiting persons from performing services which should only be done by registered health professionals.




B.     REVISIONS FROM HEALTH PROFESSION-SPECIFIC STATUTES

In this section the Council reviews several sections from some of the individual statutes the adoption of which would result in significant improvements to the HPA.

1.     Limited Registration (Dentists Act)

Section 26(5)(b) of the Dentists Act provides that the College of Dental Surgeons of British Columbia may grant limited registration where a person is the subject of a proceeding in B.C. or elsewhere which could result in suspension or limitations on the person's licence. The College of Dental Surgeons of British Columbia points out that this provision is necessary in order to deal with persons changing jurisdictions once disciplinary proceedings against them have been commenced. This provision is an effective public safety measure and the Council recommends that it be incorporated into the HPA.

Therefore, the Health Professions Council recommends that the Health Professions Act be revised to adopt a provision similar to section 26(5)(b) of the Dentists Act which provides:

If, after giving the applicant an opportunity to be heard, the council determines that at the time of the application an investigation, review or proceeding is taking place in this or any other jurisdiction which could result in the suspension or cancellation of the applicant's authorization to practise dentistry in that jurisdiction, the council may refuse to grant registration or grant registration for a period or subject to other terms and conditions.




2.     Registrants' Reporting Requirements (Dentists Act and Medical Practitioners Act)

Article 5.05(e) of the Dentists Act Rules provides that members must report to the registrar immediately if they believe a current or former registrant has committed certain specified acts, including any contravention of the Dentists Act or its rules. Section 63 of the Medical Practitioners Act creates a duty upon registrants to report other registrants. It provides:

(1) A registered member must report to the registrar the condition of any person registered under this Act whom the member, on reasonable grounds, believes to be suffering from a physical or mental ailment, emotional disturbance or addiction to alcohol or drugs that, in the member's opinion, if the person continues to practise medicine or surgery, might constitute a danger to the public or be contrary to the public interest.

An earlier version of the HPA Bylaws contained a similar provision but it does not appear in the current version of the HPA Bylaws. Such a requirement is in the public interest and ought to be included in the professional statute.

Therefore, the Health Professions Council recommends that the Health Professions Act be revised to adopt a provision similar to article 5.05(e) of the Dentists Act Rules which provides:

Reporting actions of registrants. Members must advise the registrar without delay if they have reasonable grounds to believe that a current or former registrant:

  1. has contravened the act or a rule made under it;
  2. has failed to comply with a limitation, term or condition imposed under the act or the rules;
  3. has been convicted in Canada or elsewhere of any offence that, if committed by a registrant, would constitute conduct unbecoming a registrant or unprofessional conduct;
  4. has incompetently practised dentistry or carried out the duties and procedures delegated to him as a registrant;
  5. has engaged in conduct unbecoming a registrant;
  6. has engaged in unprofessional conduct;
  7. has failed to comply with an agreement that is binding on him under section 4.1(3) of the act; or
  8. is suffering from a physical ailment, emotional disturbance or an addiction to alcohol or drugs that impairs his ability to practise dentistry or carry out the duties and procedures delegated to him




3.     Peer Assessment (Medical Practitioners Act)

Section 51 of the Medical Practitioners Act and Part XII of the Medical Practitioners Act Rules set out provisions for investigating the skill and knowledge of a registrant and for peer assessment of medical office practice. The Council supports the need for such processes and believes they can be an important part of a quality assurance program. However, the Council is concerned that the current process under the Medical Practitioners Act, and in particular section 51 of the Medical Practitioners Act, provide remedial jurisdiction to the College of Physicians and Surgeons of British Columbia which is essentially disciplinary in nature, without also affording sufficient procedural protection to the member under investigation. Although the Council supports the basis for this provision, there should be rules regarding the use of information gathered during such a process, as well as general procedural safeguards for the member should a regulatory college wish to proceed with disciplinary matters upon completion of such process.

Sections 79.1 to 83 of the Ontario Health Professions Procedural Code create a process of quality assurance under which members must participate in programs designed to evaluate their "knowledge, skill and judgment." However, section 83 provides restrictions on the use of information gathered during such process:

83.(1) Except as provided in this section, the Quality Assurance Committee and any assessor appointed by it shall not disclose, to any other committee, information that,

(a) Was given by the member; or
(b) Relates to the member and was obtained under section 82

Exception if member gave false information
(2) Information described in subsection (1) may be disclosed for the purpose of showing that the member knowingly gave false information to the Quality Assurance Committee or an assessor.

Referrals to Executive Committee
(3) If the Quality Assurance Committee is of the opinion, based on an assessment, that a member may have committed an act of professional misconduct or may be incompetent or incapacitated, the Committee may disclose the name of the member and allegations against the member to the Executive Committee.

Use in other Committees
(4) Information that was disclosed contrary to subsection (1) shall not be used against the member to whom it relates in a proceeding before the Discipline or Fitness to Practise Committees.

In this way, members are assured that the process, which they can be compelled to participate in, remains focussed on quality assurance and voluntary participation, and not formal disciplinary proceedings.

Therefore, the Health Professions Council recommends the adoption of a peer assessment program similar to that described in section 51 of the Medical Practitioners Act, but only if restrictions on use of information gathered during such a process, such as those set out in section 83(1) to 83(4) of Ontario's Health Professions Procedural Code, are included.




4.     Stay of Penalty Pending Outcome of Appeal (Medical Practitioners Act)

Section 71(4) of the Medical Practitioners Act provides that the executive committee may stay the operation of any penalty or punishment imposed pending the outcome of an appeal. No such provision is provided for in the HPA. The College of Physicians and Surgeons of British Columbia argues that the discretion is exercised sparingly and never where there is any threat of danger to the public. It states:

The discretion to grant a stay can be used to extract agreements and undertakings from a member and to elicit commitments on early appeal dates and interim restrictions on practice which, in our view, may not otherwise be able to be imposed.

The Council accepts that such a provision is in the public interest, particularly as it lessens the chance for lengthy court proceedings.

Therefore, the Health Professions Council recommends that the Health Professions Act be revised to provide a provision similar to section 71(4) of the Medical Practitioners Act which provides:
The executive committee may, on the terms it sees fit, stay the operation of any punishment or penalty imposed on a person appealing under this section until the outcome of the appeal, and may require the giving of reasonable security for its costs of the appeal and payment of a fine already imposed as a condition of granting the stay.




5.     Special Deputy Registrar (Medical Practitioners Act)

The Medical Practitioners Act provides for the appointment of a special deputy registrar, under section 21, who is primarily responsible, under section 65, for receiving and investigating written complaints about sexual misconduct. The appointment of a special deputy registrar, whose responsibility is to recommend actions to be taken by the sexual misconduct review committee respecting complaints on sexual misconduct, is another important complaint and disciplinary process that serves the public interest and ought to be included in the professional statute.

However, the Council recognizes that, for some professions, allegations of sexual misconduct may not be the type of concern that warrants creating a new position within the regulatory body. This may be so, for example, where a profession has virtually no historical incidence of such misconduct. In these professions, the regular complaint and discipline process can be used should such a case arise. Therefore, the Council recommends that the provision should include power to exempt professions from this provision where a profession has very little historical incidence of sexual misconduct.

Therefore, the Health Professions Council recommends that the Health Professions Act be revised to include a provision similar to section 21 of the Medical Practitioners Act which provides:

Special deputy registrar 21 (1) The council must designate a person appointed under section 20 (3) as the special deputy registrar.

(2) The special deputy registrar must

(a) receive and investigate complaints of sexual misconduct made to the college;

(b) on completion of an investigation of a complaint of sexual misconduct, review the findings of the investigation and recommend the action the sexual misconduct review committee should take under section 28 (2) (d); and

(c) perform other duties as directed by the sexual misconduct review committee or the registrar

(3) With the prior approval of the sexual misconduct review committee, the special deputy registrar may authorize an inspector to complete an investigation under this section under the supervision of the special deputy registrar.

(4) The special deputy registrar may attempt to resolve a complaint of sexual misconduct informally if the complainant consents and

(a) the circumstances warrant informal resolution of the complaint in the opinion of the special deputy registrar, or

(b) a direction has been made under section 28 (2) (d) (iii) to make the attempt.

6. Committee Legal Assistance (Medical Practitioners Act)

Section 67(2) of the Medical Practitioners Act empowers the council of the College of Physicians and Surgeons of British Columbia, the executive committee or inquiry committee to employ, at the College of Physicians and Surgeons of British Columbia's expense, legal or other assistance for the conduct of an inquiry or hearing. The Council believes that this provision is an important discretionary power which enhances the quality of the hearing process and recommends its inclusion in the HPA.

Therefore, the Health Professions Council recommends that the Health Professions Act be revised to include a provision similar to section 67(2) of the Medical Practitioners Act which provides:

On an inquiry or hearing, the council, executive committee or inquiry committee may employ, at the college's expense, the legal or other assistance it thinks necessary or proper.




7.     Summary Membership Termination

Section 35 of the HPA states that the board of a college may take any action it considers appropriate to protect the public, including suspending a registrant pending an investigation or hearing by the discipline committee. Section 35 of the HPA does not require that any prior notice be given to the registrant. While the Council accepts that a formal hearing requirement may not be appropriate, given the nature of the power and the matters in issue regarding section 35 of the HPA, the Council believes that natural justice requires that a registrant be given the opportunity to respond to the allegations. The Council recognizes, however, that there may be certain extreme cases involving substantial risk to the public where the powers need to be exercised without any prior notice to the registrant. Where action is taken without notice, the registrant would, of course, still be entitled to challenge the decision through the appeal process set out in s. 35(2) of the HPA.

Therefore, the Health Professions Council recommends that section 35 of the Health Professions Act be amended to add a duty to notify a registrant as well as provide an opportunity to respond to the allegations prior to action being taken under the section, with an exception for cases involving substantial risk to the public, in which case action may be taken without prior notice to the registrant.




8. Discretionary Reinstatement (Medical Practitioners Act)

Under section 62 of the Medical Practitioners Act and rule 176 of the Medical Practitioners Act Rules, the College of Physicians and Surgeons of British Columbia has the discretion to grant reinstatement to a member who has been erased from the register. A previous version of the HPA Bylaws contained a similar provision but it does not appear in the latest version. The Council is of the view that this is a positive rule and recommends its incorporation in the HPA.

Therefore, the Health Professions Council recommends that the Health Professions Act be revised to include a provision similar to section 62 of the Medical Practitioners Act which provides:

Reinstatement of entry in register
62 (1) If the council directs the erasure from the register of a person's name or of another entry, that person's name or entry must not be again entered on the register except by direction of the council or by order of the Supreme Court or of the Court of Appeal on an appeal.

(2) If the council thinks fit, the council may direct the registrar to restore to the register a name or entry erased from it, with or without payment of a registration fee, and the registrar must restore it





9. Termination or Refusal of Registration (Medical Practitioners Act and Dentists Act)

Sections 50(1) and (3) of the Medical Practitioners Act provide that:

(1) A person who has been convicted of an indictable offence by a court in British Columbia or elsewhere is not entitled to be registered and the council may erase the person's name from the register.

...

(3) The registration of a person must not be refused and the name of a person not be erased for a conviction for a political offence or for an offence that ought not, in the council's opinion, either from the nature of the offence or from the circumstances under which it was committed, to disqualify the person from practising under the Act.

A similar power appears in section 50 of the Nurses (Registered) Act which provides that a nurse's membership may be terminated summarily and without a hearing upon conviction of an indictable offence

The Council believes that section 50 of the Medical Practitioners Act is a valuable measure to deal with members and/or applicants who have been convicted of indictable offences

Therefore, the Health Professions Council recommends that the Health Professions Act be revised to include a provision similar to section 50 of the Medical Practitioners Act which provides:

(1) A person who has been convicted of an indictable offence by a court in British Columbia or elsewhere is not entitled to be registered and the council may erase the person's name from the register.

..

(3) The registration of a person must not be refused and the name of a person not be erased for a conviction for a political offence or for an offence that ought not, in the council's opinion, either from the nature of the offence or from the circumstances under which it was committed, to disqualify the person from practising under the Act.

The Council is of the view that these provisions are an important safeguard for the public and recommends that the HPA be amended to include this section. However, the Council believes it important that such provisions apply only to offences that are relevant to a member's suitability to practice.



C.     OTHER ISSUES

1.     Name of the Regulatory Body

Currently, the regulatory body for optometry and podiatry is called the "Board of Examiners." For registered nursing, the body is called the "Registered Nurses Association of British Columbia". The HPA embodies the traditional name for regulatory bodies, namely "college," while membership organizations are usually identified as "associations." The Council supports the need for uniform terminology.

Therefore, the Health Professions Council recommends that all regulatory bodies be called "colleges." This will require changes to the legislation governing registered nursing, optometry and podiatry.

2.     Access to the Register of Members

The Council discussed above, on page 43 the requirement of public access to the register and bylaws of a college in section 22 of the HPA. Clearly, the purpose of providing such public access to the register is not for the disclosure of the members' private information but, rather, for the public to verify which members of a health profession are in good standing.

In some cases, however, a member of a college may not have a business address so that the register contains only the member's personal address. In Ontario, the provisions dealing with access to a college registry provide the college with the discretion not to disclose a member's address or phone number where there are reasonable grounds to believe that disclosure may jeopardize the member's safety.

Therefore, the Health Professions Council recommends that section 22 of the Health Professions Act be amended to provide discretion not to disclose a member's address or phone number where there are reasonable grounds to believe that disclosure may jeopardize the member's safety.




D.     REVISIONS TO IMPLEMENT THE HEALTH PROFESSIONS
        COUNCIL'S RESERVED ACTS MODEL

In its report on the scope of practice review, the Council discussed legislative changes to the HPA that would need to be enacted should the government adopt the new regulatory model which is based on descriptive scope of practice statements, reserved acts and reserved titles.

The legislative changes are the enactment of: a list of reserved acts; a provision which sets out the duties of a health professional and his or her regulatory college when delegating a reserved act, a general risk of harm clause to ensure accountability for the performance of health services by unregulated providers and a provision which provides for exceptions to the general prohibition against performing reserved acts.



VI.     CHANGES TO THE HEALTH EMERGENCY ACT

The Council concluded that the profession of emergency medical assistance should continued to be regulated under the Health Emergency Act. The Council does, however, have concerns regarding some provisions of the Health Emergency Act which relate to quality assurance mechanisms and the complaint and disciplinary process, and therefore makes the following recommendations:

Therefore, the Health Professions Council recommends that the Health Emergency Act be amended to include sections 16(2)(d), 16(2)(f) and bylaw 18 of the Health Professions Act which provide:

16(2) A college has the following objects:

(d) to establish, monitor and enforce standards of practice to enhance the quality of practice and reduce incompetent, impaired or unethical practice amongst registrants;

(f) to establish, for a college designated under section 12 (2) (h), a patient relations program to seek to prevent professional misconduct of a sexual nature

Patient relations committee
18.   (1) The patient relations committee is established consisting of [6] persons appointed by the board.

      (2) The patient relations committee must include at least [2] public representatives, at least 1 of whom must be an appointed board member.

      (3) The patient relations committee must

  1. establish and maintain procedures by which the college deals with complaints of professional misconduct of a sexual nature,
  2. monitor and periodically evaluate the operation of procedures established under paragraph (a),
  3. develop and coordinate, for the college, educational programs on professional misconduct of a sexual nature for members and the public as required,
  4. establish a patient relations program to prevent professional misconduct, including professional misconduct of a sexual nature,
  5. develop guidelines for the conduct of registrants with their patients, and
  6. provide information to the public regarding the college's complaint and disciplinary process

      (4) For the purposes of this section, "professional misconduct of a sexual nature" means

  1. sexual intercourse or other forms of physical sexual relations between the registrant and the patient,
  2. touching, of a sexual nature, of the patient by the registrant, or
  3. behaviour or remarks of a sexual nature by the registrant towards the patient;

but does not include touching, behaviour and remarks by the registrant towards the patient that are of a clinical nature appropriate to the service being provided

Prior to the enactment of this provision, both the Emergency Health Services Commission and the Emergency Medical Assistants Licensing Board should be consulted about which body is best able to fulfill the duties required by these programs

Therefore, the Health Professions Council recommends that the provisions in the Health Emergency Act dealing with the complaints and discipline process be amended to ensure that the investigative and adjudicative functions are entirely separate, and that complainants are afforded a right of internal appeal regarding dismissed complaints.

Therefore, the Health Professions Council recommends that the Health Emergency Act be amended to provide for a general rule that disciplinary hearings are open to the public, subject to the list of exceptions set out in bylaw 12(5)(a) to (d) of the Health Professions Act Bylaws

Therefore, the Health Professions Council recommends that the following Health Professions Act provisions be added to the Health Emergency Act:

  1. section 33(4) which deals with the inquiry committee's power to take any action it considers appropriate to resolve a complaint, including mediation;

  2. section 36 which provides that the inquiry committee may resolve complaints by way of registrants' undertakings or consents;

  3. section 37 which describes the contents of a citation;

  4. section 38 which sets out the procedure for a discipline committee hearing; and

  5. section 40 which provides for an appeal by a person aggrieved or adversely affected by a decision of the discipline committee





VII.     MANDATORY MEMBERSHIP

In June 1998, the Minister requested that the Council address an additional issue in its legislative review. The issue was whether it is in the public interest for members of a regulated health profession to be required to belong, or to pay dues, to a professional association. The Minister noted that the Ministry has generally not been supportive of mandatory membership because it denies freedom of choice and because there is no apparent public interest that would be served.

As background, the Council notes that the issue of professional promotion and self-regulation was addressed by the Seaton Commission when it recommended that, "two separate bodies be created for all regulated or licensed professions so that there is a clear separation of membership promotion functions and licensing and discipline functions." The Seaton Commission felt that without this separation the public protection function of the College would become blurred with the membership promotion function of the professional association. However the issue of mandatory membership was not specifically addressed.

In September 1998 the Council conducted a survey on the issue of mandatory membership. The Council contacted the health professions in British Columbia and the ministries of health of all other provinces and territories, as well as other professions, such as accountants, architects, engineers, lawyers, social workers and teachers. The Council received a substantial number of responses that provided various arguments supporting or opposing a requirement for mandatory membership.

The vast majority of professions surveyed indicated that there is no legislative requirement for mandatory membership in a professional association. As far as health professions in British Columbia, only the Podiatrists Act and the Optometrists Act require that practitioners belong to the professional association. In addition, registrants of the College of Dental Surgeons of British Columbia (College) are required to pay a license fee to the College, a portion of which is used to provide funding for the professional association for dentistry. The College makes a grant to the association pursuant to section 85(2) of the Dentists Act.



A.     ADVANTAGES OF MANDATORY MEMBERSHIP

The primary argument in favour of mandatory membership was that it improves the financial viability of the association, particularly in professions with a small membership base. Several respondents felt that in the absence of a viable professional association, pressure may mount on the regulatory body to undertake the role of the association and in turn, undermine the regulatory body's role in serving the public interest. Other respondents submitted that since all members of the profession benefit from the association's activities, for example in negotiating fee agreements with government or third party payers, all members should share in its funding.

Many other submissions were made about the benefits of membership in a professional association, though these submissions did not relate directly to the issue of mandatory as opposed to voluntary membership. These included the comments that a membership association:

  • enhances educational activities and promotes research ventures;

  • provides a facility for continuing education, and public information dissemination;

  • would be in a position to advocate in support of the economic interests of members;

  • is more proactive in government/media relations than the regulatory body which must be careful and circumspect in its public statements;

  • provides a vehicle for exchanging information, mentoring and educational activities;

  • provides greater opportunity to inform members of legislative and legal changes relevant to their practice standards, and to receive regular information concerning findings pertaining to their area of specialty;

  • may provide liability insurance for the protection of the public.




B.     DISADVANTAGES OF MANDATORY MEMBERSHIP

Those who felt it undesirable to have mandatory membership argued primarily that it violates a professional's right of freedom of association under the Charter of Rights and Freedoms. Another common submission was that mandatory membership may result in a blurring of the respective roles of professional association (promoting professional interests) and the regulatory body (serving the public interest). Some of the other submissions opposed to mandatory membership stated that it would result in increased fees, and that confusion may arise about which professional association a member will be forced to join. Although in some professions there is clearly one dominant association, in others, there may be several groups competing for membership.

The Council accepts that professional associations can provide services that are in the public interest, such as providing continuing education programs and advocating health policies and programs. However, while it may be desirable for practitioners to belong to professional associations, it is not in the public interest to require them to do so. Making membership compulsory infringes on members' freedom of association, and has the potential to raise the perception that the activities of the regulatory body and professional association are not truly separate. The Council agrees with the views of the College of Dental Technicians of British Columbia when it states:

We do not feel that a college should encroach on personal freedoms. A registrant should have the freedom to choose for themselves whether an association provides the components that will make membership a pleasant and valuable experience. we also feel that as the interests of the associations are not necessarily related to licensure and competency issues, it would be inappropriate and at odds with the regulatory role, to require membership.

Public trust and confidence in the self-regulating process is reinforced with a clear separation of the regulatory body and professional association. Further, the Council sees little distinction between mandatory membership and mandatory dues. The system described by the College of Dental Surgeons still restricts members' freedom of association since it is the College that selects the association that receives the grant. This raises the perception that the duties of the regulatory body are not entirely separate from the activities of the professional association.

After carefully considering the responses, the Council concludes that it is not in the public interest for members of a regulated health profession to be required to belong, or to pay dues, to a professional association.

Therefore, the Health Professions Council recommends the repeal of any provision in any professional statute, rule or regulation that requires members of a regulated health profession to belong, or to pay dues, to a professional association.




VIII.     OVERSIGHT OF COLLEGES

One significant issue which has only recently been drawn to the attention of the Council is the necessity of some process to ensure the accountability of the regulatory colleges themselves.

The mandate of all the colleges is to regulate their separate professions in the public interest. Elsewhere in this report the Council has made recommendations regarding such matters as barriers to interdisciplinary practice. Not all the professions will agree with the approach taken by the Council. To the extent such recommendations, if enacted, are ignored, the public interest is not going to be served.

Differences may well arise between professions on a variety of issues, some of which will undoubtedly have an impact on the public interest.

The Council has concluded that some process must be put in place to deal with inter-professional complaints and to provide general oversight of the regulatory colleges' performance. This function could well fit in with the recommendations in the Scope of Practice Report for an ongoing review of the Reserved Acts List [Part I, Volume 1, Section IV.C.5(a), page 62].

Therefore, the Health Professions Council recommends a process be established by the Minister of Health and Minister Responsible for Seniors for the Health Professions Council to provide ongoing review and oversight of the regulatory colleges.




IX.     FINAL WORD

The HPA embodies the framework for a new model of self-regulation for health professions. It recognizes the value of making more choices available to the public in determining its health care needs while at the same time ensuring that the choices are within safe parameters.

However, the new model does not apply equally to those professions which are not designated under the HPA. This has been the primary task of the legislative review: to determine whether it is in the public interest to bring all, some or none of the self-regulating health professions under the one umbrella statute.

The history of self-regulation has a long and generally meritorious tradition in this province, as elsewhere in Canada. It has taken the form of a statute, enacted by the legislature, enabling a regulatory body to be established for the actual governance. The regulatory body has various names-the College of Physicians and Surgeons, the Board of Examiners in Optometry-but in whatever guise, the function is essentially the same. The regulatory body is made up almost entirely of members of the profession (with lay members now mandated), and its main task is to set the entrance qualifications, standards of practice, bylaws and rules of practice and disciplinary mechanisms. In day to day practice, the members rarely have need to refer to their governing statute; the rules of their regulatory body determine what they do and how they do it.

Despite the lack of interaction between the members and their statute, certain professions have attached a significance to having their own statute, with their own professional name, which far exceeds the intended purpose. In any event, perpetuating the dual system of having some professions regulated pursuant to individual statutes and others pursuant to the Health Professions Act, can only entrench the impression that some professions are more recognized than others. This flies in the face of the implicit objective of eliminating the concept of a hierarchy among the professions.

While all professions proclaim support for the team approach to the provision of health care, in practice many professions complain that some professions consider themselves more equal than others.

Apart from the fact that regulation pursuant to a single universal statute has been recommended by previous studies of the delivery of health services (see the Seaton Commission report, for example), and despite the fact that it is the declared choice of government, there are other reasons:

  • It is the current trend. Alberta is instituting such a plan and Ontario has had it in place for a number of years without apparent deplorable effects, at least none that have been pointed out to the Council despite invitations to those opposed to such a plan do so, while other provinces have such a system under active consideration;

  • All newly recognized health professions are designated as such under the HPA;

  • Some of the professions operating under their own statutes have requested designation under the HPA;

  • It ensures that all self-regulated professions are subject to the same law so that judicial interpretations will apply to all;

  • Most significantly, it removes the appearance that some professions are superior to others and thereby 'merit' their own statute.

During the public hearing into the scope of practice of the nursing profession, the Council was reminded of the early motto of one of the most highly regarded nursing schools in the country: "I see and I am silent." That is a sad commentary on attitudes towards a noble and humanitarian profession. Hospitals did work in those days, but to subscribe to the philosophy of "if it ain't broke don't fix it," which several professions suggested as a good reason to retain the present system, would be perpetuating the same attitudes today. The system has progressed since then, to the benefit of the public. The Council believes the recommendations in this report will continue that progression.


Appendix A: TERMS OF REFERENCE AND GUIDELINES