Now Underway – Consultation on a Future Framework for Palliative Care in Canada

The federal government passed a private member’s bill (C-277), the Framework on Palliative Care in Canada Act, on December 12, 2017. As required by the Act, the federal government is consulting on the future of palliative care in Canada – specifically, in the context of the availability of physician-assisted death. The goal is to develop a framework for access to high quality palliative care in hospitals, home care, long-term care facilities and residential hospices.

According to is website, the federal government is now seeking input from health care professionals across Canada, health system experts, caregivers, people living with life-threatening illnesses, and interested Canadians about their long-term vision for palliative care in Canada, including access, education, support and training for caregivers. The consultation seeks ideas and experiences on the following topics:

  • Definition of palliative care
  • Advance care planning
  • Person and family-centred care
  • Challenges facing people living with life-threatening illness
  • Consistent access to palliative care
  • Special populations (i.e., Indigenous, infants, children and youth, homeless, rural and remote communities, LGBTQ2, people living with disabilities, immigrants and refugees, and others)
  • Health care provider education, training and supports
  • Caregiver training and supports
  • Community engagement
  • Bereavement

This is a great opportunity to have your organization’s voice heard and to give your administrators and health care staff a chance to contribute to the development of public policy.  The voices of health care providers, caregivers and their families are also an integral part of these consultations about the future of palliative care in Canada.

Submissions are due by July 13, 2018 and may be made in writing or on-line.  For help making a submission, please get in touch with me: spalter@ddohealthlaw.com. If you are interested in reading the Act, it is available here: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-277/royal-assent

By December 11, 2018, the report of the federal Minister of Health that sets out the framework for palliative care must be presented to the House of Parliament and 10 days after that the report must be posted on Health Canada’s website.  Watch this blog to stay informed.

 

 

Progressing Toward the Regulation of Psychotherapy in Ontario

The regulation of psychotherapy has been more than 10 years in the making but significant strides have been made recently toward full implementation.  Further to the Minister of Health and Long-Term Care’s direction in December of 2017, the College of Registered Psychotherapists of Ontario created a draft regulation identifying therapy modalities that its members could use when providing psychotherapy services. The proposed regulation (under the Psychotherapy Act) was released in April and comments are due by June 15, 2018. The draft regulation is available here: https://www.ontariocanada.com/registry/view_posting.jsp;jsessionid=mAnot1q4ZrYdoGo6sV7mSaT?language=en&postingId=27366

There are six categories of treatment modalities identified in the proposed regulation and they are fairly broad. In order to give some additional clarity to the regulation, and further to the Minister’s direction, the CRPO conducted a public consultation about its draft policy identifying activities that do not fall within the controlled act of psychotherapy. The draft policy is available here: https://www.crpo.ca/wp-content/uploads/2018/03/CRPO-CATG-Consultation-Documents_Consultation-Draft.pdf

Psychotherapists who are not currently registered with an RHPA or social work college whose members are permitted to practise psychotherapy must determine whether their practice falls within one of the broad prescribed modalities identified in the draft regulation; if yes, the practitioner must take steps to become registered with a college permitting such practice (such as the CRPO) or they must take steps to restrict their practice.

In order to provide additional guidance to currently unregulated psychotherapists to help them determine whether they are providing the controlled act of psychotherapy, and therefore whether they need to take steps to register before December of 2019, the CRPO also released a self-assessment tool for providers.  A link to the self-assessment tool is found here https://www.crpo.ca/wp-content/uploads/2018/03/CRPO-CATG-Consultation-Documents_Consultation-Draft.pdf

Prior to the CRPO’s public consultation about the draft regulation, the Health Professions Regulatory Advisory Council reported to the Minister about clarifying the meaning of the controlled act of psychotherapy. That report, entitled “The Therapeutic Relationship as the Cornerstone of Psychotherapy” was released to the public in March of 2018 and is available on the Council’s website.

The CRPO regulation and policy represent a significant move forward toward comprehensive regulation of psychotherapists in Ontario.

For more information, contact Simmie Palter @ spalter@ddohealthlaw.com

Professionalism and the Public Interest

The Alberta Court of Appeal recently confirmed a health profession regulator’s authority to enact regulations in the public interest, even if no harm is occurring. In Sobey’s West v. College of Pharmacists of Alberta (2017 ABCA 36), Sobey’s sought judicial review of a College policy (incorporated into a regulation to give it the force of law) that prevented pharmacies, pharmacists and pharmacy technicians from offering inducements to clients that required the intervention of a pharmacist or pharmacy technician. Sobey’s acquired Safeway and continued Safeway’s policy of permitting Air Miles loyalty points to be collected by clients filling prescriptions at their pharmacy. While no complaints were made to the College about the loyalty points program, Sobey’s West sought judicial review of the policy, arguing that it curbed competition. At the time, Sobey’s West was challenging a similar policy in the court in British Columbia.

The Alberta Court of Queen’s Bench (the trial division in Alberta) found that the College’s policy was ultra vires (outside the authority of) the College. The Alberta Court of Appeal reversed the trial judge’s decision, indicating that the College has legislative authority to enact law that protects the public interest. Therefore, the policy prohibiting the collection of Air Miles loyalty points on prescription drug purchases was within the jurisdiction of the College. This decision is consistent with Sobey’s West v. College of Pharmacists of B.C. (2016 BCCA 41), where the B. C. Court of Appeal found a similar college policy was within the authority of the College to make (and reversed the B.C. trial division decision).

The reasoning of these decisions is consistent with the Supreme Court of Canada’s decision in Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care) (2013 SCC 64), where the Supreme Court of Canada upheld provincial drug benefit legislation and regulations whose intent was to increase transparency in generic drug pricing on the grounds that the regulations were consistent with the stated purpose of the enabling legislation.  The court explained, in a unanimous decision, that to be found ultra vires, regulations must be shown to be inconsistent with the objective of the enabling statue or the scope of the statutory mandate. The court noted that there is a presumption of validity regarding regulations, which means that the regulations should be reconciled with the enabling statute in manner that is possible to construe them as intra vires and that the onus of proving them ultra vires is on the challenger – not on the rule-maker to justify them.  The court also makes a point of noting that it is not the court’s role to assess the policy merits of the rules nor the partisan, social, or economic issues that may have been the catalyst for their creation.

Does the decision of the Alberta Court of Appeal, together with the Supreme Court of Canada’s presumption of validity for regulations, imply that regulators have a wide berth to enact restrictive rules as a matter of public interest, and that such rules will be difficult to challenge on judicial review?  While regulators do have considerable latitude to enact regulations as a matter of protecting the public, each challenge to a regulation will turn on the particular wording of the regulation or policy in question, and on the precise wording of the enabling statute.  In the past, regulations preventing the charging of block fees by physicians were judged to be ultra vires the Medicine Act because the court found they were made for the purpose of preventing extra-billing rather than for protecting the public, thus departing from the statutory mandate. See:  Szmuilowicz v. Ontario (Minister of Health), (1995) 125 D.L.R. (4th) 688 (Gen. Div.).

Similarly, regulations preventing dentists from advertising their services using content that was informational, accurate, and helpful to individuals choosing a dentist were struck down as contrary to the right to freedom of expression protected by the Charter: see Rocket v. Royal College of Dental Surgeons of Ontario, (1990) 71 D.L.R. (4th) 68 (S.C.C.).

In a third case, regulations preventing inactive physiotherapists from practising beyond their scope of practice were found by the court to be unauthorized:  see Lefko v. College of Physiotherapists of Ontario, (1998) 116 O.A.C 86 (Div Ct).

These cases show that professional regulations are not impossible to successfully challenge.

Consequently, it is recommended that regulators, when seeking enactment of such rules into legislation, carefully draft the proposed rules to ensure that they are consistent with the regulator’s statutory mandate and do not exceed the scope of authority granted by the enabling legislation.

For help in drafting regulations for health professions, please feel free to get in touch: spalter@ddoheatlhlaw.com.

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).

What Colleges, members, advocacy associations and health care institutions need to know about Bill 87

Bill 87, the Protecting Patients Act, 2016, was introduced by Ontario’s Minister of Health and Long-Term Care on December 8th.  Proposed amendments to the Regulated Health Professions Act will give the Minister more control over the composition of colleges’ statutory committees, increase the colleges’ power to suspend members as an interim measure, implement changes regarding sexual abuse that aim to protect the public, and increase reporting obligations of members. Fines for a facility’s failure to report sexual abuse are also increased.

Regulators should be vigilant to ensure that their needs are communicated to the government and request consultation prior to the government making regulations that will affect selection of panel members and quorum for the Registration, Discipline, Fitness to Practice and Inquiry, Complaints and Reports committees, among other matters. Members of regulated health profession colleges, as well as advocacy associations, should be concerned about increased reporting obligations for members and collection of members’ personal information and personal health information to aid the Minister in deciding whether or not a college is fulfilling its duties under the Act.  Health care institutions should be aware of the increased monetary fines for failures to report sexual abuse.

A detailed exploration of the Bill’s impact on the Regulated Health Professions Act follows.

Bill 87’s impact on the Regulated Health Professions Act:  a detailed review

Bill 87, the Protecting Patients Act, 2016, amends a number of pieces of health care legislation.  This blog focuses on the proposed amendments to the Regulated Health Professions Act.

Under the proposed amendments to section 5, the Minister may require reports from a regulated health profession college Council that may contain personal information or personal health information of its members, to the extent necessary to allow the Minister to determine whether:

  • the college is carrying out its objects and fulfilling its duties; and
  • whether the Minister should exercise his powers under the Act or under a health profession Act, the Drug and Pharmacies Regulation Act or the Drug Interchangeability and Dispensing Fee Act

Although the Bill limits the collection of personal information and personal health information to no more than is necessary for the intended purpose, and indicates that collection of this information should not occur if other information will suffice, we have some concern about this ability of the Minister to require the production of personal information and personal health information of members where the Minister reviews the Council’s activities and requires the provision of reports and information.  The Minister’s review of a Council’s activities ,and decision about whether to take action, should not hinge on personal information or personal health information of members. Why would de-identified information or information in aggregate form only not suffice?

Under the proposed amendments, the Minister may request that a college collect personal information directly from its members not only for the purposes of health human resources planning but also for health human resources  research.

New regulation-making powers that are proposed will increase the oversight powers of the government by allowing it to make regulations:

  • governing the composition of committees of the Executive, Registration, Quality Assurance, Patient Relations, Discipline, Fitness to Practise and Inquiry Complaints and Reports Committees; qualifications for sitting on these committees; and reasons for disqualification from them;
  • setting out rules for the selection of panels of the Registration, Discipline, Fitness to Practice and Inquiry, Complaints and Reports Committees and quorum for these panels;
  • clarifying how a college is required to perform its inquiry, complaints, reports, discipline and incapacity functions in respect of allegations of misconduct of a sexual nature and providing for further functions and duties not inconsistent with those functions; and
  • expanding the purposes for which funding for therapy or counselling may be available from a college.

These new regulation-making powers will give the government more control over the kinds of qualifications necessary for members who sit on statutory committees. Any rules set out in these government-made regulations will prevail over rules about committee composition that are currently set out in college by-laws. The degree of input by the colleges into these regulations will depend on the amount of consultation the government undertakes, if any, and the degree to which colleges notify the government of their needs. There is no requirement for consultation with members or the colleges prior to the government making such regulations.  Colleges will want to be proactive in communicating their needs to government.

Additional proposed amendments will enhance the colleges’ power to protect the public from members about whom a complaint or report has been made by permitting an interim suspension order if the Committee is of the opinion that the member’s conduct or the member’s physical or mental state exposes, or is likely to expose, the member’s patients to harm or injury.  Any such interim suspension order, however, is not permitted to contain gender-based restrictions on the member’s certificate of registration. Registrars are also given power to withdraw a complaint or report before the Inquiry, Complaints and Reports Committees takes any action, if the complainant requests the withdrawal of the complaint or report.

The proposed changes also place more obligations on members to report:

  • their membership in another regulatory body that governs a profession inside or outside of Ontario;
  • findings of professional misconduct or incompetence from other regulatory bodies, inside or outside Ontario; and
  • if he or she has been charged with an offence and bail conditions, if any; the results of any appeal must also be reported.

The proposed changes in respect of sexual abuse aim to enhance protection of the public. These amendments:

  • prescribe offences that can trigger the application of the mandatory revocation provisions, via a government-made regulation (not a college regulation);
  • expand the list of grounds for mandatory revocation of a member’s certificate of registration;
  • require suspension where the professional misconduct involving sexual abuse does not fit within the expanded list of acts triggering mandatory revocation;
  • increase the amount of information available from the public register;
  • define “patient” to include an individual who was a member’s patient within the last year or within such longer period of time as may be set out in a government-made regulation;
  • define “patient” by criteria (other than time) set out in a government-made regulation;
  • increase monetary penalties for a facility’s failure to report suspected sexual abuse of a patient by a member, from $25,000 for individuals to not more than $50,000 (upon conviction) and from $50,000 for corporations to $200,000; and
  • allow patients who make complaints or reports involving sexual abuse allegations to access funding for patient therapy and counselling immediately, instead of waiting until after a finding of professional misconduct is made.

Advocacy associations, health care facilities and regulators are encouraged to voice any concerns they may have about this bill to the government without delay. For more information or assistance please contact spalter@ddohealthlaw.com.

Mike Gleeson: Updates to QCIPA

Michael Gleeson

The Huddle Podcast: Episode 11

This week on The Huddle Podcast, Kate Dewhirst interviews Mike Gleeson, Senior Corporate Counsel at DDO Health Law about changes to the Quality of Care Information Protection Act, 2004.

Mike offers practical observations about:

  • What is QCIPA?
  • Who can use QCIPA (and who can’t)
  • What’s new?
  • Why was using QCIPA controversial – what is the new version intended to address?
  • What do the 4 types of health facilities that can use QCIPA need to know?

Click here for more information about Mike Gleeson.

 

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