DDO Health Law Update

August 16, 2019: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

 

The Ontario Legislature has adjourned until October 28, 2019.

 

Proposed and Approved Regulations

 

There are no new and approved regulations of interest.

 

DDO Training

 

DDO Health Law Privacy Officer Training – Early Bird Special!

 

Articles of Interest

 

Ontario Health Teams

Durham hopeful of selection as an Ontario Health Team

 

Health Care

Bring in pharmacare now, health experts ask federal leaders

Ontario man walks across country raining awareness for mental health

Ontario government to regulate autism therapists

A doctor’s warning: Safety is at risk in Ontario’s ERs

‘He doesn’t want us to give up on him’, family fights to keep life support

Nursing home residents with advanced dementia often face ‘distressing’ transfer, MDs find

 

Professionalism and Misconduct

Guelph doctor under investigation by Ontario College of Physicians and Surgeons

Edmonton pediatrician charged with child pornography offences

Doctor guilty of sexual abuse but revoking license too harsh court says

The harm to hospitalized patients cost Ontarians more than $1B a year: study

 

AI

Ontario Tech students using AI to teach robots sympathy

CMPA supports appropriate use of AI in healthcare

Blood pressure monitoring could be as simple as a selfie, Canadian researchers says

 

DDO Health Law Update

August 12, 2019: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

 

The Ontario Legislature has adjourned until October 28, 2019.

 

Proposed and Approved Regulations

 

  1. REG 329/04 – PHIPA

 

The proposed amendments:

  • Ontario Health will assume current responsibilities of Cancer Care Ontario (“CCO”) under PHIPA as a prescribed entity and prescribed registry, and will also assume responsibilities of eHealth Ontario (“eHO”) for creating and maintaining the provincial electronic health record (“EHR”).
  • Revocation date of the regulation provisions enabling the operation of the EHR from January 1 2020, to January 1, 2021 to ensure eHO or Ontario Health, as the case may be, may continue to create and maintain the EHR while the government continues the work necessary before Part V.1 of PHIPA could be proclaimed into force.

Comments deadline: October 7, 2019

More Information: https://www.ontariocanada.com/registry/view_posting.jsp;jsessionid=afAHE_Jq5vrvgKY1PFsKy9t?language=en&postingId=30070

 

Ontario Newsroom

Ontario launching program to fund out-of-country dialysis services

Ontario improving access to timely care for patients in crisis

Ontario adding more mental health and addictions services for indigenous communities

More tools available for police to find missing seniors

 

Articles of Interest

 

Ontario Health Teams

Guelph health partnerships moves towards OHT

Cambridge area health group reaches next round in Ontario Health Team process

Local push for Ontario Health Team continues

 

Health Care

Ontario needs $5.2B in additional health cuts to reach savings targets: report

Ontario to party fund dialysis for travelers after cutting out-of-country health care

Health group says Ontario must do more to protect children from climate change

Health Sciences North welcomes 25 new doctors

Canada slow to act against shoddy stem cell therapies, new paper argues

 

Privacy

Metrolinx to consult Ontario privacy watchdog before sharing ridership data

Ontario woman files class action against Capital One following data breach

Capital One now contacting millions of Canadians affected by data breach

 

Physicians

‘Manipulating physicians’: How drug reps pitch your doc

 

Professionalism and Misconduct

College cautions outspoken Sudbury doctor

Kelly McParland: The Wettlaufer report is clear – no one is to blame for anything

 

AI

Canada’s chief information officer Alex Benay leaving to join AI startup Mindbridge

Skills evaluation, tailored feedback: McGill AI project could change the way brain surgeons are trained

 

DDO Health Law Update

August 6, 2019: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

 

The Ontario Legislature has adjourned until October 28, 2019.

 

Proposed and Approved Regulations

 

No new and approved regulations of interest.

 

Ontario Newsroom

 

Ontario Taking Immediate Action to improve Long-Term Care System

 

DDO Blogs

 

Long-Term Care Home System Strained but Not Broken: Summary of the LTC Homes Inquiry Report

 

Articles of Interest

 

Ontario Health Teams

View the full list of teams: Ontario Health Teams web page.

 

Privacy

Capital One data breach hits about 6 million people in Canada, 100 million in US

Canada’s privacy commissioner opens investigation into Capital One data breach

 

Professionalism

Ontario doctor with history of fraud, misconduct resigns, will not practice in province again

Inside an Ontario fentanyl trafficking ring involving a doctor and a pharmacist

Toronto neurosurgeon who murdered wife to face disciplinary charges

Greed, betrayal and medical misconduct at North York General

 

AI

Will Artificial Intelligence improve health care for everyone?

Long-Term Care Home System Strained but Not Broken

Co-authored by Nareh Ghalustians

The Report on the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (the “Report”) was released on July 31, 2019, with 91 recommendations (the “Recommendations”) for improving the safety and security of residents in Ontario’s long-term care system, and for Ontarians receiving home care services. The Report was released following the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (the “Inquiry”). The commission to spearhead this Inquiry was established on August 1, 2017, after Elizabeth Wettlaufer pleaded guilty to and was convicted of eight counts of first-degree murder, four counts of attempted murder, and two counts of aggravated assault offences that she committed while working as a registered nurse in various long-term care homes in southwestern Ontario and as a nurse providing home care services in private homes. She has been sentenced to life imprisonment with no parole eligibility for 25 years.

This article reviews Volume 1 of the Report and identifies the mandate of the Inquiry and its key findings and summarizes the Recommendations affecting long-term care homes in Ontario. We anticipate that there will be broader implications across the entire health sector arising from these Recommendations.

Background

The Report was dedicated to the victims and their loved ones. It notes that the regulatory regime that governs the system is not broken and imposes clear standards for long-term care homes, and a rigorous inspection regime to enforce those standards that can be built upon and improved. In that vein, the Report requires the Ministry of Health and Long-Term Care (the “Ministry”)[1] to issue a report by July 31, 2020, describing the steps it has taken to implement the Recommendations coming out of the Report, and to table that report in the Ontario Legislature. In a recent news release, the Ministry stated its intention to meet this deadline.

Mandate

The Report notes that the mandate of the Inquiry was to inquire into the events that led to the offences, circumstances, and contributing factors, and to make recommendations on how to avoid similar tragedies in the long-term care system. The mandate was not to conduct a general review of the long-term care system.

Key Findings

The Report highlights three main findings:

  1. The offences would not have been discovered if Elizabeth Wettlaufer had not confessed.
  2. The offences resulted from systemic vulnerabilities.
  3. The long-term care system is strained, but not broken.

Recommendations

The Report was clear that change is required on a systemic level.

Training

The Report recommends that long-term care home licensees must provide training to administrators and directors of nursing on hiring and discipline of staff, conducting workplace investigations, and on reporting obligations to the Ministry and the College of Nurses of Ontario (the “College”). Recommendation #3 suggests that this training be provided by the Ministry, the College, and the Office of the Chief Coroner/Ontario Forensic Pathology Service.

The Report also recommended that medical directors, attending physicians, and nurse practitioners of long-term care homes receive comprehensive, ongoing training on preventing resident abuse and neglect, a requirement from which they are currently exempted, unlike other staff such as registered nurses.

The Report also adds a specific Recommendation that Medical Directors complete the Ontario Long-Term Care Clinician’s Medical Director course within two years of assuming the role of Medical Director in a long-term care home.

Furthermore, the Report recommends additional training for staff, visitors, and residents about their obligations to report to the Ministry (not just to the long-term care home) regarding suspected abuse and neglect of residents that results in a risk of harm to the resident (see s. 24(1) of the Long-Term Care Homes Act, 2007 (the “Act”)).

Summary of Other Key Recommendations

  • Handling of Medication. Recommendations were made for improving the long-term care home’s medication administration and medication incident reporting systems, and how to use the recommended redesigned institutional Patient Death Record, once it is created.

 

    • Improved medication management in long-term care homes is recommended through a three-pronged approach directed at the Ministry creating new policies, improving the annual quality inspection process, and by long-term care homes modifying and improving the security of rooms in which medications are stored and using technology to support medication management.

 

    • Recommendations are made to the Ministry to permit long-term care homes to use the additional nursing and personal care funding to purchase or upgrade integrated automated medication dispensing cabinets and install cameras and/or glass doors in medication rooms.

 

    • It is recommended that long-term care homes improve their medication incident analyses (required by the Act) and treat the use of glucagon as a medication incident. Medication incidents, under the Act, would have to be reported and reviewed at least quarterly by the long-term care home’s medication management interdisciplinary team, composed of the Medical Director, administrator, director of nursing and personal care, and the pharmacy service provider. More details regarding medication management can be found in Recommendations #74-84 of the Report.

 

    • Recommendation #19 recommends that the Ministry expand the nursing and personal care funding envelope and permit long-term care homes to use these funds to pay for a broader spectrum of staff including porters, pharmacists, and pharmacy technicians.

 

    • Recommendation #76 goes further to recommend that long-term care homes use this funding to engage a staff pharmacist and/or pharmacy technician. The Report also recommends that the licensees use this new funding for training, education, and professional development of all staff, including the backfilling of positions for staff attending training. Further, the Report recommends that licensees be permitted to use the expanded or new funds for annual membership fees in AdvantageOntario and the Ontario Long-Term Care Association.

 

  • Agency Nurses, Service Providers, and the Role of the Ministry. Specific Recommendations are made regarding long-term care homes’ use of agency nurses (Recommendations #11-13); home care service provider obligations (Recommendations #14-18); and the role of the Ministry (Recommendations #19-31).

 

  • LHINS/Ontario Health, College, Coroner, and Ministry Recommendations. Recommendations #32-39 are directed toward Local Health Integration Networks (“LHINs”) and providers and coordinators of home care services, and thereby to Ontario Health, once it takes over this role. One of the Recommendations is for the LHINs to adopt a common electronic events reporting system and to train staff and service providers on its use. Recommendations #40-49 are directed to the College and Recommendations #50-61 to the Office of the Chief Coroner/Ontario Forensic Pathology Service. Recommendations #62-63 suggest an expanded leadership role for the Ministry and improved communication with the LHINs/Ontario Health.

 

  • Health Care Serial Killer Phenomenon. Building awareness of the “healthcare serial killer” phenomenon is addressed in Recommendations #64-73 (a phenomenon used to describe murders committed by individuals working as health care professionals). The Inquiry heard evidence that 90 healthcare serial killers have been convicted in the USA, Canada, and Western Europe since 1970, but the phenomenon has been documented since the 1800s.

 

  • Number of Registered Staff. It is recommended that the Ministry conduct a study to determine the adequate levels of registered staff in the long-term care homes on each of the day, evening, and night shifts, table the study in the legislature by July 31, 2020, and increase funding accordingly (Recommendation #85).

 

  • Detecting Deaths. Suggestions for improving the detection of intentionally caused resident deaths are covered in Recommendations #86-91.

Conclusion

The Report highlights the dedication and commitment of individuals working in the long-term care system under pressure and with limited resources. The Report highlights improvements that were implemented by stakeholders during the Inquiry and prior to the release of this Report, including the formation of a working group on medication management systems in long-term care homes, and the increase in the amount of information available from the College about nurses’ employment history, and stakeholder-led initiatives that predated the Inquiry, such as a medication safety pilot project and the clinical support tools program.

The Report expresses hope that the Inquiry and the Report can rebuild Ontarians’ shattered trust in the long-term care system.

[1] The Government of Ontario recently divided this Ministry into two, appointing a separate Minister of Long-Term Care in addition to what is now called the Ministry of Health. This blog post uses the language of the Report, which references both Ministries jointly.

Understanding the Regulatory Framework of OTN’s eConsult

The use of virtual care, also called telemedicine, is growing in Ontario. The June 2019 Devlin Report on Ending Hallway Medicine referred to the Ontario Telemedicine Network’s eConsult program as a success story that could be built upon in the pending realignment of the healthcare system.[1]

What is telemedicine? How are electronic consultations remunerated? Do these services meet regulatory requirements? If you need advice about the practise of telemedicine, or related privacy issues, please contact spalter@ddohealthlaw.com or sgrauer@ddohealthlaw.com.

This blog explores telemedicine, electronic consultations and related regulatory issues.

What is telemedicine?

Telemedicine is the use of communications technology to provide clinical patient care, or to assist in the provision of such care, at a distance. Various technologies may be used, including telephones (land lines and mobile devices), electronic mail, video-conferencing, audio-conferencing, remote monitoring and telerobotics.[2] The improvement of access to medical services for patients in rural communities, via telemedicine services facilitated by the Ontario Telemedicine Network (OTN), has been reported in the literature.[3]

The Ontario Telemedicine Network facilitates various telemedicine programs[4] including:

  • eConsult – electronic consultations between primary care providers and specialist physicians in respect of a specific patient
  • eCare – applications or devices that monitor patients, or to allow patients to self-monitor in their own homes
  • eVisit – real-time video visits with patients.

This blog entry will focus on e-Consult, electronic consultations between health care providers.

Electronic consultations

The OTN eConsult is a service that lets a referring provider, such as a family physician or nurse practitioner, consult with a specialist physician over a secure hub provided by OTN, without requiring the patient to visit the specialist (in person or virtually). The referring provider sends the clinical question, along with relevant patient information such as patient/family history, history of the presenting complaint and (where indicated) laboratory and diagnostic test results, to the specialist. The specialist reviews the records and answers the clinical question, provides a consultation report and may request that the patient be referred.[5] In tele-dermatology, a referrer (including a specialist) can send digital images to a consulting dermatologist and receive a response within five days.[6] In tele-ophthalmology, patients are referred by their family physician to an OTN tele-ophthalmology site where their retina is scanned and the image is uploaded to an ophthalmologist for assessment, diagnosis and/or treatment recommendations while the referring provider coordinates follow-up care.[7]  Physicians can apply for access to the secure OTN hub and the eConsult service at https://support.otn.ca/en/form/otnhub-sign-form-ocfp-members.

The Ontario Telemedicine Network’s 2017-2018 annual report indicates that during that time period 33,643 electronic consultations took place, including tele-dermatology and tele-ophthalmology, and resulted in 78% referral avoidance.[8] Electronic consultations save time and money for patients who avoid a visit to the specialist.

Who pays for electronic consultations?

Under the eConsult program, there is no charge to the patient. Both the referring physician or nurse-practitioner, and the consultant physician, can bill OHIP for telemedicine services if certain conditions are met.[9] All physicians billing OHIP for telemedicine are required to complete a form to be registered as a telehealth provider with the Ministry of Health. The OTN website also indicates that consultants may be remunerated through another route via funding provided by the Ministry of Health.[10] Physicians are permitted to bill for services provided at sites outside the OTN network but only if the service is eligible for remuneration through OTN/the provincial telemedicine program and the site has been certified by OTN; it is unclear whether this remuneration occurs through OHIP or otherwise through the Ministry.

Regulatory requirements

Regulatory requirements for physicians providing medical services to patients vary somewhat across provinces and territories. Similarly, the requirements for physicians providing telemedicine services also vary across Canada. The College of Physicians and Surgeons of Ontario’s telemedicine policy states that it applies to CPSO-registered physicians, regardless of where the physician or patient is physically located when the telemedicine service is provided.[11]

Under the CPSO telemedicine policy, CPSO-registered physicians providing medical services via telemedicine, including consultations with other providers, are required to ensure that telemedicine is in the best interests of the patient, and that the physician’s regulatory and legal obligations, including the standard of care, can be met. Physicians are also required to ensure that the patient is accurately identified, and that the patient information obtained via telemedicine is reliable and of sufficient quality. Providers must also protect the privacy and confidentiality of their patients’ personal health information and ensure that the technology platform is secure.

How does a physician ensure that such security and technical requirements are met? According to the CPSO policy, physicians can do so by using the sites in the OTN network, or OTN certified sites, or by checking with a privacy expert.[12]

What happens if a physician is located outside of Ontario?

Under the CPSO telemedicine policy, if the consultant is outside of Ontario, but the referring provider is inside of Ontario, the Ontario referrer is expected to take reasonable steps to ensure him/herself that the consultant is appropriately licensed in his or her jurisdiction of practice and should alert the patient, via the use of a form, that the consultant may or may not be licensed to practise medicine in Ontario. If the referring provider is located outside of Ontario, and is not registered with the CPSO, the CPSO may report that provider’s actions to his or her local medical regulator, and reimbursement from OHIP may not be available to the provider.

A national telemedicine framework?

In most provinces, practising telemedicine across borders requires that the practitioner confirm that s/he is complying with the licensing requirements of one or both jurisdictions. Given that Canada has provincial regulatory requirements for the practice of telemedicine by physicians that are not harmonized, the Federation of Canadian Medical Regulatory Authorities is exploring a national telemedicine license for physicians to support the provision of telemedicine across all Canadian provinces and territories.[13]

Watch this blog space for updates. If you have questions, contact the author:  spalter@ddohealthlaw.com.

 

[1] Premier’s Council on Improving Healthcare and Ending Hallway Medicine, A Healthy Ontario: Building a Sustainable Health Care System, June 2019, available at https://files.ontario.ca/moh-healthy-ontario-building-sustainable-health-care-en-2019-06-25.pdf, pages 20-21.

[2] Telemedicine Policy. College of Physicians and Surgeons of Ontario. December 2014. Available at: https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Telemedicine

[3] O’Gorman, L.D., Hogenbirk, J.C. and Warry, W. Clinical Telemedicine Utilization in Ontario over the Ontario Telemedicine Network. Telemed J E Health. 2016 Jun 1; 22(6): 473–479.

[4] Such programs include teledermatology, telepyschiatry, teleophthalmology, telestroke, emergency services, critical care and others. More information about these program is available at https://otn.ca.

[5] See https://otnhub.ca/patient-care/#econsult

[6] See https://otnhub.ca/patient-care/teledermatology/

[7] See https://otn.ca/innovationcentre/teleophthalmology/

[8] Ontario Telemedicine Network 2017-2018 Annual Report. Available at: https://otn.ca/wp-content/uploads/2017/11/otn-annual-report.pdf

[9] See the Schedule of Benefits, March 1, 2016, available at http://www.health.gov.on.ca/en/pro/programs/ohip/sob/physserv/sob_master20181115.pdf

[10] According to the OTN website, supra note 4, remuneration is available through the Ontario eConsult Centre of Excellence, which is housed at the Ottawa Hospital, in partnership with the Bruyere Research Institute and various regional and delivery partners including the OTN, OntarioMD, eHealth Ontario, the South East Academic Medical organization and the Champlain BASE (Building Access to Specialists through eConsultation).

[11] CPSO telemedicine policy. Supra note 1.

[12] CPSO telemedicine policy. Supra note 1.

[13] College of Physicians and Surgeons of British Columbia. Registrar’s message: Telemedicine and licence portability―the future of medical regulation in Canada. College Connector Volume 7. No. 2. March/April 2019.    https://www.cpsbc.ca/for-physicians/college-connector/2019-V07-02/01

 

DDO Health Law Update

July 26, 2019: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

The Ontario Legislature has adjourned until October 28, 2019.

 

Proposed and Approved Regulations

No new and approved regulations of interest.

 

Ontario Newsroom

Ontario investing in new long-term care beds in Mississauga

Ontario investing in new long-term care beds in Brampton

Supporting seniors and their families through consultations across Ontario

 

Articles of Interest

Ontario Health Teams

Barrie healthcare group given green light to submit an application to form an Ontario Health Team

Southlake, partners get thumbs up to continue Ontario Health Team application

Province approves new Ontario Health Team for Windsor-Essex

Focus of Ontario health care restructuring shifts to the community

 

Health Care

The public inquiry into the safety and security of residents in the long-term care homes system: Inquiry update

BHATIA: The future of health care is digital

Hospital ‘black boxes’ begin providing data that will help reduce distractions, errors in operating room

 

Cannabis

Ontario First Nation divided over fate of legal cannabis grow-op on its land

Flavonoids are the next big thing in marijuana research

 

Public Health

The vaping epidemic is a major public health threat to our kids

How exactly does fat cause cancer?

 

Things to do

30 things to do in Toronto this weekend