Ultrasound technicians – road to regulation

Ultrasound technicians are on the road to regulation. The Ministry of Health and Long-Term Care is consulting on proposed regulations until October 16 to bring ultrasound technicians under the jurisdiction of Ontario’s College of Medical  Radiation Technologists.

Contact us for more information or for help with a submission.  To see the proposed regulations click here http://www.ontariocanada.com/registry/view.do?postingId=24694&language=en

Proposed regulations under LHIN legislation

On June 21st the Ministry of Health and Long-Term Care completed the transition of all 14 Community Care Access Centres in Ontario.  The administration and coordination of home care and community services and long-term care home placements will now be performed by the 14 Local Health Integration Networks (LHINs).

On July 4th, the Ministry released for consultation draft regulations that facilitate this transition.  Regulations under the Local Health System Integration Act are proposed to preserve the provision of services in French and to reflect the LHINs’ expanded mandate to arrange and provide home and community care services. Issues of patient safety, and quality of services and programs provided by the LHIN, will be discussed in proposed quality committees to be created at each LHIN. The text of each regulation amendment is available here:

http://www.ontariocanada.com/registry/showAttachment.do?postingId=24427&attachmentId=34511

 

Submissions to the Ministry about these regulations are due by September 4, 2017.

Ontario’s new Patient Ombudsman

Recently here at DDO we were discussing the role and powers of the Patient Ombudsman. The Patient Ombudsman has jurisdiction to resolve complaints about health service organizations such as public hospitals, long-term care facilities, and certain services provided by the LHINs.

The Patient Ombudsman is an office of last resort – so people having complaints must first explore resolution directly with their health service organization. When a complaint is filed, the Patient Ombudsman will ensure that no other body has jurisdiction over the complaint and, with patient consent, will try to facilitate resolution by contacting the health sector organization.

The Patient Ombudsman may investigate complaints where a facilitated resolution is unsuccessful. Health sector organizations such as hospitals and long-term care homes will be well placed to respond to inquiries from the Patient Ombudsman if their internal processes for addressing complaints are robust, thorough, and comprehensive.

For more information about the Patient Ombudsman, for help in crafting a robust complaint process, or for help in responding to an inquiry from the PO, please contact me at spalter@ddohealthlaw.com.

Nurse practitioner’s role now includes prescribing controlled substances

Nurse practitioners (NPs) fill an important gap in our health care system. In 2007, the first Ontario NP-led clinic opened its doors in Sudbury, and dozens more are now in operation in Ontario.

On April 19, 2017, the role of NPs was expanded. Provided the NP successfully completes the required education, NPs have the authority to prescribe medical cannabis and substances that may be used for medical assistance in dying (MAID).  The education must be approved by the governing council of the College of Nurses of Ontario and must be specifically designed to educate NPs to safely, effectively and ethically prescribe controlled substances.

Before prescribing can occur:

  1. there must be a nurse-patient relationship between the NP and the patient;
  2. the intended use of the substance can only be therapeutic; and
  3. certain information must be contained in the prescription, a copy of which must be retained as part of the patient’s health records.

To see more information, click here http://www.cno.org/en/news/2017/april-2017/nps-can-now-prescribe-controlled-substances/ or access the Nursing Act general regulation: https://www.ontario.ca/laws/regulation/940275#BK39.

Bill 84, the Medical Assistance in Dying Amendment Act, includes limited immunity for NPs who assist with MAID.  NP-led clinics are also given limited immunity in relation to the delivery of MAID. Bill 84 received Royal Assent and became law on May 10th.

For advice concerning NPs in your health care organization, contact Simmie: spalter@ddohealthlaw.com.

The Genetic Non-Discrimination Act: Bill S-201

Genetic information can reveal very sensitive and personal information about an individual and his/her family. The federal Genetic Non-Discrimination Act (Bill S-201) received Royal Assent in the Senate on May 4, 2017.

The Bill gives control to Canadians over the use of their genetic test results by banning anyone from requiring an individual to undergo genetic testing, or from disclosing the results of a genetic test, as a condition of entering into or continuing a contract; or as a condition of providing goods or services to that individual.  The Bill makes amendments to the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics and amends the Canada Labour Code to protect employees from being required (by their employers) to either undergo genetic testing or disclose the results of such testing. Violation of the prohibition is an offence that can result in substantial fines, imprisonment or both.

The prohibition against requiring disclosure of genetic test results does not apply to a physician, pharmacist or other health care practitioner (in respect of individuals to whom they are providing health services) or to researchers conducting medical, scientific or pharmaceutical research (in respect of research participants).

Bill S-201 would prevent insurance companies from requesting disclosure of genetic test results, received either in a therapeutic or research context, in order to assess actuarial risk. The first-reading version of the Bill exempted high value insurance contracts from the prohibition if the province enacted a provision expressly permitting an insurer to require a person to disclose any existing genetic test results as a condition of entering into or continuing a contract of insurance. That clause did not appear in the final version of the Bill.

The Canadian Life and Health Insurance Association (CLHIA) announced, on November 11, 2016, a commitment from insurers to refrain from collecting or using any genetic test results for new applications for life insurance policies up to $250,000, effective January 1, 2018. As a result, according to the CLHIA, more than 85% of applications for life insurance would not require any disclosure of genetic test results[1]. This is a higher policy amount than was included in the exemption for insurance contracts ($1,000,000) that appeared in the first version of Bill S-201. Even with this commitment, insurers would not be permitted to require disclosure of genetic test results for higher value policies under Bill S-201.

However, there is concern that the Bill intrudes upon the provinces’ jurisdiction over insurance.  In the Senate debates of April 4, 2017, Senator Frum noted that the Prime Minister and the Minister of Justice will be referring the Bill to the Supreme Court of Canada, on the matter of constitutionality, after it receives Royal Assent[2].

The meaning of “personal information” under Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) was also at issue in the first version of the Bill. When the Bill was introduced, it included amendments to PIPEDA to define personal information to include “personal health information, such as information derived from genetic testing”.  However, David Therrien, the Privacy Commissioner of Canada, noted that the current definition of personal information in PIPEDA is broad enough to include information derived from genetic testing, and that including such information as an example of personal health information could narrow the definition of personal health information and also limit information derived from genetic tests to the health care context, thereby excluding information from genetic testing conducted for other purposes, such as paternity, ancestry and others. Subsequently, the Bill was amended at third reading in the Senate to remove the amendments to both PIPEDA and the Privacy Act.

[1] See https://www.clhia.ca/domino/html/clhia/clhia_lp4w_lnd_webstation.nsf/page/07AC1F9D1616B528852580A4006D544E

 

[2] See https://sencanada.ca/en/Content/Sen/chamber/421/debates/108db_2017-04-04-e#31.

 

Sexual abuse of patients by health care providers

Physicians and other regulated health professionals have a duty to act in the best interests of their patients, an obligation that has always been viewed as being generally incompatible with any sort of sexual relationship between health care providers and patients. Under the Regulated Health Professions Act, Ontario takes a zero tolerance approach to sexual activity between patients and health care providers, and it’s no defence to argue that a sexual relationship between a patient and a provider is consensual. All sexual acts, including “behaviour and remarks of a sexual nature” come within the definition of “sexual abuse”, though the concept “of a sexual nature” excludes touching, behaviour, or remarks of a clinical nature appropriate to the service provided.

The Health Professions Procedural Code provides for mandatory revocation of a regulated health professional’s certificate of registration for certain instances of sexual abuse – if the abuse comes within a defined list of sexual acts, revocation must result. For sexual abuse that does not involve these acts, the penalty is at the discretion of the Discipline Committee. If a provider’s certificate of registration has been revoked, the provider can’t apply for re-instatement for 5 years.

The mandatory revocation provisions have been challenged in the Court of Appeal several times since they took effect in December of 1993. This month the Divisional Court affirmed the legislative scheme, and specifically the mandatory revocation sections, as being constitutional[1].  The Court affirmed that there is no constitutional right to practise a profession; that a revocation of a professional license is not a deprivation of an individual’s liberty (and therefore not contrary to section 7 of the Charter) and that the ordeal of undergoing disciplinary proceedings (and the related media storm) is not a violation of a provider’s security interests (also protected under section 7 of the Charter).

Over the years, some providers have argued in court that the zero tolerance provisions are too broad because they include spouses, and sexual relationships that pre-date the professional relationship, and certain exemptions with respect to spousal relationships have been added to the Act. A spousal exemption enacted in 2013, to permit treatment of spouses where the profession makes a regulation to that effect, gave rise to a novel  defence in a recent abuse case.

In Sliwin v CPSO, the provider argued that his multi-year extra-marital relationship, conducted clandestinely in his office, in exchange for free (and major) cosmetic surgery, was tantamount to a spousal relationship, even though they did not cohabit. The court rejected this argument, holding that the exemption is specific, unambiguous and narrowly drafted to include only spouses, as defined in the Family Law Act (which includes married and common law spouses), and only sexual relationships that occur when the provider is not engaged in the practice of the profession.

Zero tolerance for sexual abuse is now an entrenched principle, and in some ways is becoming even more strict. The Ontario government has recently proposed changes to expand the list of defined sexual acts which, once proven, will require mandatory revocation; the proposed changes will also require suspension of a professional’s privilege to practise where outright revocation is not mandatory. Debates about these changes, embodied in Bill 87, the Protecting Patients Act, began on March 27, 2017.  As of April 13, 2017, the Bill is at second reading and has been referred to the Standing Committee of the Legislative Assembly of Ontario.

While the Bill expands the grounds for mandatory revocation, and increases fines for failures to report instances of sexual abuse of patients, the proposed amendments would introduce temporal parameters around the meaning of “patient”. In Bill 87, a patient remains a patient for one year after the end of the patient-provider relationship. Additional criteria for defining “patient” may be set out in a government regulation. This introduces some flexibility into the zero tolerance approach and reflects some of the arguments previously advanced by unsuccessful litigant health care professionals.

To see Bill 87, click here http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4477&detailPage=bills_detail_the_bill

To see the decision of the Divisional Court in Sliwin v. CPSO (2017), click here. http://www.canlii.org/en/on/onscdc/doc/2017/2017onsc1947/2017onsc1947.html?searchUrlHash=AAAAAQAGc2xpd2luAAAAAAE&resultIndex=7

To see a list of the 26 professions regulated under the RHPA, click here https://www.ontario.ca/laws/statute/91r18#BK52   and then click on Schedule 1.

Simmie Palter is senior health law counsel at Dykeman & O’Brien LLP. Professional regulation is one of Simmie’s main areas of interests, but she provides advice in many other aspects of health law. The views expressed herein do not constitute legal advice. For more information email spalter@ddohealthlaw.com.

[1] Sliwin v. College of Physicians and Surgeons of Ontario 2017 ONSC 1947 (CanLII, Div Ct).

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