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Submission to the Standing Committee on Social Policy On Bill 171, the Health Systems Improvement Act

April 20, 2007

Issues for Consideration

Controlled Act – Acupuncture

The College's first comment relates to an issue that the Committee will be familiar with through its prior consideration of Bill 50, the Traditional Chinese Medicine Act.

The College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario was established by the Traditional Chinese Medicine Act. Health professionals governed by this statute were granted authorization to perform the controlled act of acupuncture. Members of other colleges who perform acupuncture retained this authority through revisions to the controlled act regulation under the RHPA (Regulation 107/96) that exempt them from the restrictions defined in Section 27 of the RHPA that would otherwise prevent them from performing this act.

The granting of a statutory authorization to perform the controlled act of acupuncture to some professions while others perform this act under an exemption regulation is a very complicated and hard to understand process.

Not only is it difficult for members of health professions to understand, it is even more obscure for members of the public who may wish to determine whether their chosen health professional is authorized to perform acupuncture.

As such, the consideration of Bill 171 is an excellent opportunity for the government to make changes that clarify and make consistent the authority by which the professions that are legally permitted to perform acupuncture are able to perform it.

This might be accomplished by authorizing the controlled act of performing acupuncture to all the professions who are currently exempted from the restrictions on performing it in regulation 107/96.

Proposed Amendment: That the controlled act of "Performing a procedure on tissue below the dermis and below the surface of a mucous membrane for the purpose of performing acupuncture" be authorized to each of the regulated health professions that are permitted to perform acupuncture under the authority of section 8 of Controlled Acts Regulation 107/96 under the Regulated Health Professions Act.

Exceptions to Duty of Confidentiality (Section 36)

The College believes that in most areas the changes that have been proposed to the RHPA's primary confidentiality provision, s. 36, are an improvement.

However there are two issues that are related to the exceptions to the confidentiality duty that we believe should be added to the existing provisions. These additional exceptions should:

  • Permit colleges to release non-registrant criminal conduct information. An additional exception of this type would permit a college to release information, for example, threats of violence by a complainant or embezzlement by a college employee to the appropriate authorities.
  • Permit colleges to share registrant information with organizations that track registrant conduct information. There are a number of organizations that undertake such activities. Perhaps the most well known is the National Practitioner Database in the United States, which was established to assist regulators and other agencies to identify and restrict the ability of incompetent physicians, dentists, and other health care practitioners to move between jurisdictions without disclosure of adverse action history.

The College believes that additional exceptions to the proposed confidentiality duties will prepare and enable colleges to engage more fully in the health system's rapidly evolving spirit of transparency and collaboration. These are changes are also clearly supported by the public interest mandate of colleges to protect the public from dangerous practitioners.

Proposed Amendment: That proposed RHPA ss. 36(1) be amended to permit the College to disclose the following information:

  • criminal conduct by a person other than a registrant and
  • sharing information with a national or international organizations whose primary purpose is to facilitate sharing of information among professional regulators about the conduct, competence and capacity of practitioners of a profession.

Powers of Investigation and Entries and Searches (Sections 76 and 77)

The proposed changes to the Registrar's investigation provisions in Section 76 are a concern. Specifically, the description of the location that investigators can enter has been revised. Instead of being able to enter the "business premises of the member" the investigator can enter the "place of practice of the member" (Code ss. 76(2)).

The College is of the opinion that this change of wording will limit investigators. For example, investigators wish to enter an offsite location where the records are stored or the registrant's computer server is kept. However, if the registrant does not practice at this location, this may not be permitted.

A somewhat similar concern arises respecting the proposed changes to the search warrant process in Section 77. The proposed amendment precludes obtaining a warrant to enter "a dwelling or part of a dwelling that is not the place of practice of the member". Given that some health professionals meet the requirement to maintain records by keeping some patient files in their homes, the College is concerned that this proposed restriction will inhibit its ability to collect needed information.

With these concerns in mind the College believes that changes should be made to ensure that the College's ability to investigate is not impaired.

Proposed Amendment: That Code ss 76(2) be revert to its original language of "business premises of the member" and that Code ss 77(1) be amended to remove the words "a dwelling or part of a dwelling that is not the place of practice of the member".

Discipline Committee Quorum (Section 38)

The College is concerned about the proposed changes to the quorum requirements for a panel of the Discipline Committee.

The quorum provisions of a panel, which has always been three members, have been altered to also require three members even for pre-hearing motions, (Code s. 38). This requirement may have an impact on some Discipline Committees that had rules of practice made under the Statutory Powers Procedure Act permitting pre-hearing matters to be heard by a one or two person panel.

The College is concerned that this apparently minor change will make it nearly impossible for some colleges, such as this one, to establish panels for Discipline Committees as there simply will not be enough committee members available to set up new panels when they are required.

Given this concern the College believes that the requirement that pre-hearing panels have three members be removed.

Proposed Amendment: That Code the proposed revisions to subsection 38(5) that would strike out the word "Three" at the beginning and substitute the words "Where a panel has been selected, even if the hearing has not commenced, three", be removed.

Maximum Term of Council Members (Section 5)

The College is puzzled over the proposed amendment to Code ss. 5(2) that will impose an absolute maximum of nine years that any one individual may serve on Council. One issue is that the change will surely result in transitional issues for those Councils that have members that have served more than nine years in total.

However a more substantial issue relates to the principles of democracy. The obligations of Council members require significant time and/or financial commitments to the College, which limits the availability and willingness of registrants who are able to serve.

Further, these representatives have been nominated and elected by their peers to serve on the College Council. The College is uncertain as to why duly elected representatives who are willing to make personal sacrifices to serve the public interest should be disqualified from continuing this important work when their peers continue to elect them.

Proposed Amendment: That the proposed change to ss 5(2) of the Code in which the word "consecutive" has been deleted revert to the original language of the provision.

Notice to Registrants (Section 25)

The College is concerned that the proposed amendments requiring the Registrar to give notice to a registrant subject to a complaint within 14 days may impair its ability to undertake investigations.

For example, it would be very difficult for many colleges to if act to obtain information before the registrant learned of the investigation. In these circumstances some registrants may take steps to ensure that information required by a college for its investigation is no longer available.

With this concern in mind, the College suggests that a process for delaying notice be added to section 25 where 14 days is not sufficient to conduct the required investigation.

Proposed Amendment: That Code ss. 25(6)(a) be amended to permit colleges to delay notice to the registrant of the investigation beyond the 14-day time period if necessary to preserve evidence.

Public Register (Section 23)

The College is concerned that section 23(6) proposes to give the Discipline Committee the authority to order the Registrar to remove information (such as a discipline finding) from the public register after a period of six years.

In the view of the College, this proposal is inconsistent with the other proposed changes that promote increased transparency and enhanced public access to information. The College suggests that there are matters that should remain part of the public register for the duration of the relevant member's career and that open access to such information is an important component of the public right to make an informed choice respecting their health providers.

Proposed Amendment: That Code ss. 23(6)(a) be removed from the legislation.

Summary

In summary the College is supportive of the proposed changes to the RHPA made by in Schedule M of Bill 171. There are some areas that might benefit from some additional consideration and it is in this context that the College has made its comments.

The following is a list of recommendations that the College has discussed in greater detail in its submission.

Recommendations

  • Controlled Act – Acupuncture. That the controlled act of "Performing a procedure on tissue below the dermis and below the surface of a mucous membrane for the purpose of performing acupuncture" be authorized to each of the regulated health professions that are permitted to perform acupuncture under the authority of section 8 of Controlled Acts Regulation 107/96 under the Regulated Health Professions Act.
  • Exceptions to Duty of Confidentiality (Section 36). That proposed RHPA ss. 36(1) be amended to permit the College to disclose the following information:
    • criminal conduct by a person other than a registrant and
    • sharing information with a national or international organizations whose primary purpose is to facilitate sharing of information among professional regulators about the conduct, competence and capacity of practitioners of a profession.
  • Powers of Investigation and Entries and Searches (Sections 76 and 77). That Code ss 76(2) be revert to its original language of "business premises of the member" and that Code ss 77(1) be amended to remove the words "a dwelling or part of a dwelling that is not the place of practice of the member".
  • Discipline Committee Quorum (Section 38). That Code the proposed revisions to subsection 38(5) that would strike out the word "Three" at the beginning and substitute the words "Where a panel has been selected, even if the hearing has not commenced, three", be removed .
  • Maximum Term of Council Members (Section 5). That the proposed change to ss 5(2) of the Code in which the word "consecutive" has been deleted revert to the original language of the provision.
  • Notice to Registrants (Section 25). That Code ss. 25(6)(a) be amended to permit colleges to delay notice to the registrant of the investigation beyond the 14-day time period if necessary to preserve evidence.
  • Public Register (Section 23). That Code ss. 23(6)(a) be removed from the legislation.