DDO Health Law Update

A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

No new bills of interest.

 

Status of Previously Reported Bills

 

Bill Status
 

Bill 160 – Strengthening Quality and Accountability for Patients Act, 2017

The Bill is at Third Reading on December 7, 2017
 

Bill 174 – Cannabis, Smoke-Free Ontario and Road Safety Statue Law Amendment Act, 2017

 

Before the Standing Committee on Justice Policy

 

Proposed and Approved Regulations

 

A) Regulation 552 – Health Insurance Act

An amendment to regulation 552 is required to align the regulation with the soon-to-be-proclaimed amendments to the Child and Family Services Act (CFSA) that will extend eligibility for child protection services to 16 and 17 year old youth through a Voluntary Youth Services Agreement (VYSA). Under the current CFSA, 16 and 17 year olds are not eligible to receive child protection services from a Society unless a youth is already the subject of a child protection court order.

For more information: http://www.ontariocanada.com/registry/view.do?postingId=25751&language=en

 

B) Child, Youth & Family Services Act, 2017 (“CYFSA”) Proposed Regulations

 

Health Newsroom

 

Ontario opening 50 new long-term care beds in London

  • Province opening 30, 000 more beds across the province over the next decade

 

Ontario improving access to care with major expansion of Toronto Western  Hospital

  • Province increasing capacity for surgeries and post-operative care

 

‘It’s done’ hospital CEO says about site of Windsor’s mega-hospital

 

How one Toronto hospital is coming back to life to bring relief to five more

 

Articles of Interest

 

Marijuana

Did a pot overdose kill a baby? Controversial paper on infant’s death raises questions

 

Opioid Crisis

Ontario expanding opioid response as crisis grows

 

HIV + Non-disclosure

HIV-positive community says Ontario’s ruling on non-disclosure cases is first step in long process

 

Professional Misconduct

Double dipping lawyers targeted in law society crackdown

Parry Sound doctor accused by nurses of sexual harassment and using amputated toe to make crude gestures

Psychiatrist reprimanded for advertising natural-health invention says he’s been denied free speech

 

Health Care

Yukon rolls out world first labels warning alcohol can cause cancer

Ontario auditor general finds wasted spending in health care, education and empty buildings

Statement by the Minister of Health and Long-Term Care on the Auditor General’s Report

Study on workplace violence on ‘indictment’ of Ontario healthcare system

 

Self-care

Best Cheesecake in Toronto

If you’re sick stay away from work if you can’t here is what doctors advise

 

Interesting Reads

When a tattoo says ‘do not resuscitate’ should doctors obey?

 

What’s happening in our city this weekend:

Things to do this Weekend

 

 

DDO Legislative Update

A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

 

Bill 182, Compassionate Care Act, 2017

 

This Bill enacts the Compassionate Care Act, 2017, which requires the Minister of Health and Long-Term Care to develop a provincial framework to support improved access to hospice palliative care. The Act requires the Minister to set out the provincial framework one year after the Bill comes into force, and within 5 years after the report is tabled, the Minister must prepare and table a report on the state of hospice palliative care, which should be published on a Government of Ontario website.

 

Introduced by Sam Oosterhoff, MPP (Niagara West – Glanbrook), the Bill was carried on First Reading on November 27, 2017

 

More information: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=5415

 

Status of Previously Reported Bills

 

Bill
Status
Bill 160 – Strengthening Quality and Accountability for Patients Act, 2017 Before the Standing Committee (General Government). Last consideration before the Committee was on November 29, 2017.
 

Bill 174 – Cannabis, Smoke-Free Ontario and Road Safety Statue Law Amendment Act, 2017

 

Consideration of a Bill on November 30, 2017 before the Standing Committee on Justice Policy.  

 

 

Proposed and Approved Regulations

 

No new regulations of interest.

Health Newsroom

 

Humber River Hospital breaking new ground with the opening of Canada’s First Hospital Command Centre

New CEO of North East LHIN – Jeremy Stevenson

Ontario improving wound care for patients with diabetes

  • Province funding casts to treat diabetic foot ulcers

Ontario reducing carbon footprint boosting are at hospitals

  • November 27, 2017 – Energy savings to be reinvested in patient care

New patient navigators to assist every person diagnosed with dementia to access the right care

  • November 28, 2017 – Ontario expanding proven dementia program to every community across the Province

Ontario launches new tool to check if prescriptions are covered with OHIP+

  • November 30, 2017 – One month until 4,400 drugs will be free for anyone age 24 and under

 

Articles of Interest

Marijuana

Is Quebec missing out on the marijuana boom?

Durham College offers class on cannabis business as legalization looms

Joint Agreement: Delta 9 to grow pot for Canada’s largest marijuana producer

 

Professional Misconduct

Ontario’s medical regulator cracking down on doctors over ‘offensive’ cyberbullying

 

Health Care

The radical ex-hippie who infiltrated Ontario’s health-care establishment

Man who inspired Ice Bucket Challenge dies after ALS battle

1 in 5 Canadians infected with HIV doesn’t know it

Patients needing admission to hospital stuck in ER longer, report says

Sunnybrook introduces program to prevent preterm and stillbirths in Ontario

 

First Nations

Trudeau government withdraws court case on health care for First Nations children

 

Self-care

Food you probably don’t need to refrigerate (and ones you do)

Every new title coming to Netflix Canada in December

 

Interesting Reads

The big shifts about to hit the Supreme Court of Canada

Coffee Taste Test: Tim Hortons vs. McDonald’s

As a doctor, I often use the phrase ‘a good death’ – but I’m rethinking it after losing my grandma

DDO Legislative Update

A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

  • No new Bills of interest.

Status of Previously Reported 

 

Bill Status
Bill 160 – Strengthening Quality and Accountability for Patients Act, 2017  

It is still under consideration of a Bill before the Standing Committee (General Government). Last consideration before the Committee was on November 22, 2017.

 

Bill 174 – Cannabis, Smoke-Free Ontario and Road Safety Statue Law Amendment Act, 2017

 

Ordered referred to Standing Committee on Justice Policy pursuant to the Order of the House on November 23, 2017.

 

 

Proposed and Approved Regulations

  1. O.REG 107/96 (Controlled Acts) – Regulated Heath Professions Act, 1991

 The proposed amendments to O.REG 107/96 would allow for a period of time during which anyone may perform the controlled act of psychotherapy. The purpose of this exemption allows a transitional period for individuals who provide psychotherapy services to register with an appropriate regulatory College. At the end of the transitional period, individuals who have not registered with one of the relevant regulatory colleges will no longer be able to perform the controlled acts in the course of providing health care services to an individual unless it is done through legitimate delegation or subject to certain exceptions set out in the RHPA.

 

Social work and social service work students would also be allowed to perform the controlled act of psychotherapy under supervision, in the course of fulfilling requirements to become members of the profession. A similar provision exists for regulated health professions in the RHPA.

 

For more information: http://www.ontariocanada.com/registry/view.do?postingId=25567&language=en

 

  1. Proposed Approach to the regulation of Cannabis (Consultation Paper)

 

The Government of Canada intends to bring the proposed Cannabis Act into force no later than July 2018. To support implementation of the proposed Act, regulations would need to be enacted in a range of areas, such as cannabis product standards and packaging and labelling requirements, to ensure that the risks and harms of cannabis are appropriate addressed under the legal framework. Health Canada proposes to build on established regulatory requirements that have long been in place for current producers of cannabis for medical purposes or industrial hemp.

 

The purpose of this consultation paper is to solicit public input and views on the approach to these regulations. It is important that the public provide feedback as the draft regulations will not be pre-published to meet the July 2018 deadline.

 

Consultation Paper: https://www.canada.ca/en/health-canada/programs/consultation-proposed-approach-regulation-cannabis/proposed-approach-regulation-cannabis.html

 

Health-Related Newsroom

 

St. Michael’s Hospital is launching a 30 million Centre to fight MS

Articles of Interest

Opioid Crisis

Health Canada eyes opioid restrictions for popular painkiller

Opioid prescriptions in Canada on the rise over last 5 years

Surgeons and the opioid crisis: We need prescription guidelines

Canada’s anti-money laundering agency crunches data in fight against fentanyl

 

Medical Marijuana

Liberals announce Canadian legalized marijuana regulations with public consultation

Quebec government reveals details of marijuana bill

Comparing marijuana to fentanyl is social conservatism without a clue: Robyn Urback

 

Health Care

Yukon rolls out world-first — labels warning alcohol can cause cancer

New report alleges big sugar tried to hide possible link to cancer 50 years ago

Sugar industry misled public, hid connection to heart disease for decades: U.S. report

Bird flu’s fifth wave: Experts quietly warn that the virus is spreading in Asia

 

Self-Care

New reasons not to eat cookie dough

Drinking three cups of coffee a day tied to health benefits: study

 

What’s happening in our city this weekend:

Things to do in Toronto

Cavalcade of Lights (Official lighting of Toronto’s Christmas Tree)

Toronto Christmas Market

 

 

DDO Legislative Update

A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

 

Child, Youth and Family Services Act, 2017 (“CYFSA”).

CYFSA has not been proclaimed into force yet but it will replace and repeal the Child and Family Services Act. It was introduced as Schedule 1 of Bill 89, the Supporting Children, Youth and Families Act, 2017,  which received Royal Assent on June 1, 2017.  The Act is expected to come into force on January 1, 2018. Some of the key changes:

  • Raising the protection of children from 16 to 18 to increase protection for more vulnerable youth in unsafe living conditions
  • Strengthening focus on early intervention, helping prevent children and families from reaching crisis situations at home
  • Making services more culturally appropriate for all children and youth in the system, including indigenous and black children and youth to ensure they receive the best possible support
  • Improving oversight of services providers, including CASs, so that children and youth receive consistent, high quality services across Ontario
  • Ensuring better privacy protections for children and youth, which will give Ministry of Children and Youth Services and service providers powers to collect, use and disclose personal information (the privacy framework is modeled after PHIPA)

Bill: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4479

CYFSA: https://www.ontario.ca/laws/statute/17c14

 

Status of Previously Reported 

 

 

Bill Status
 

Bill 154  – Cutting Unnecessary Red Tape Act, 2017

 

Royal Assent received on November 14, 2017

 

Bill 160 – Strengthening Quality and Accountability for Patients Act, 2017

 

It is under consideration before the Standing Committee (General Government) on November 16, 2017

 

Bill 174 – Cannabis, Smoke-Free Ontario and Road Safety Statue Law Amendment Act, 2017

 

Second reading on November 16, 2017

 

 

Proposed and Approved Regulations

No new and approved regulations of interest

 

Health-Related Newsroom

Ontario opening new hospice in Nipissing

  • Nov 13, 2017 – More patients and families in Northern Ontario to received compassionate palliative care closer to home

Ontario approves major hospital expansion for Peel Memorial Centre

  • Nov 9, 2017 – Province opening 37 more hospital beds for families in Brampton

Ontario improving access to care with new Niagara Falls Hospital

  • Oct 30, 2017 – Province bringing state-of-the-art facilities to patients and families

Ontario redeveloping and expanding Kingston Health Sciences Centre

  • Oct 30, 2017 – Upgrades will improve access to care for families across Southeastern Ontario

Ontario providing more beds for Ottawa seniors

  • Oct 27, 2017 – 2000 more bed and spaces available across the province

 

Articles of Interest

 Professional Misconduct

Experts divided over move to force patient to testify in doctor’s sex abuse case

 

Health Care

Pay-for-access online doctors move Nova Scotia into ‘dangerous territory,’ college warns

There is a prescription for poverty’s punishing impact on health in Ontario

 

Medical Marijuana

Shoppers Drug Mart posts job for medical marijuana brand manager

Weed, cannabis, pot or marijuana: what’s the difference?

 

What’s happening in our city this weekend:

This Weekend: Things to Do

 

 

DDO Legislative Update

In honour of our fallen soldiers on Remembrance Day this weekend:

 Flanders Field

-Lieutenant Colonel John McCrae

 In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead.  Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.



A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

No new Bills of interest.

 

Status of Previously Reported 

 

No new developments for previously reported Bills.

 

Bill Status
   
1.   Bill 154  – Cutting Unnecessary Red Tape Act, 2017
  • Third Reading carried on November 1, 2017
2.   Bill 160 – Strengthening Quality and Accountability for Patients Act, 2017
  • Ordered referred to Standing Committee (General Government) on October 26, 2017
3.   Bill 161 – Nick’s Law (Opioid Abuse Awareness), 2017
  • Ordered referred to Standing Committee (Social Policy) on October 5, 2017
4.   Bill 164, Human Rights Code Amendment Act, 2017
  • Ordered referred to Standing Committee (Regulations and Private Bills) on October 26, 2017
5.   Bill 174 – Cannabis, Smoke-Free Ontario and Road Safety Statue Law Amendment Act, 2017
  • Second reading on November 2, 2017.

 

 

Proposed and Approved Regulations

No new and approved regulations of interest

 

Articles of Interest

 

Professional Misconduct

Doctor who showed porn to patient has licence revoked

Patient is trying to stop Ontario’s Medical Regulator from forcing her to testify at a doctor’s sex abuse hearing

 

Health Care

Ontario’s Patient Ombudsman eyes improvements to health care

Health Canada eases restrictions on abortion pill

 

Mental Health

Canada, China partner on project using apps, texts to treat mental health

Canada’s special forces face unique metal health challenges

 

Seniors

Liberals unveil $155M seniors’ strategy

Aging with Confidence: Ontario’s Action Plan for Seniors

 

What’s happening in our city this weekend:

Things to Do this Weekend

Ticket are on sale for Third Annual Foodie Holiday Market

All you need to know about road and subway closures for Remembrance Day weekend

How and where to honour fallen soldiers in the GTA on Remembrance Day

 

Self-Care

Most Popular Books Published in 2017

Best 24-hour Diners in Toronto

Food Network: 50 Cozy Fall Comfort Food Recipes

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.