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Ontario's Bill 87 Proposes Significant Changes to Regulated Health Professions and Laboratory Laws

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Health Law Bulletin

In December 2016 the government of Ontario introduced Bill 87.

The stated purpose of the Bill is to protect the interests of patients. It contains significant amendments to the Regulated Health Professions Act, 1991 (the "RHPA") including changes aimed at strengthening sexual abuse and transparency regimes under the RHPA. If enacted, the Bill will also amend the following other Acts: the Laboratory and Specimen Collection Centre Licensing Act, the Ontario Drug Benefit Act, and the Seniors Active Living Centres Act, 2016, and the Immunization of School Pupils Act.

The Bill received first reading on December 8, 2016. We expect it will be a priority when the Legislature resumes sitting in February 2017.

The Regulated Health Professions Act, 1991 and Health Professions Procedural Code

The Bill proposes significant amendments to the RHPA and Health Professions Procedural Code (the "Code").

Sexual Abuse Amendments

The Bill introduces amendments to strengthen the regime for handling of alleged sexual abuse by professionals who are members of a health regulatory College in Ontario. The amendments respond to various recommendations made by the Ministry's Task Force in its report entitled "To Zero: Independent Report of the Minister's Task Force on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act, 1991", which was delivered to the Minister in December 2015.

The proposed amendments would:

  • Expand the definition of "patient" for the purposes of sexual abuse to include an individual who was a member's patient within the last year or a longer prescribed period and also to provide regulation-making power to specify other individuals to be considered patients for the purposes of the section.
  • Prohibit Discipline Committee panels from directing the Registrar to impose gender-based terms, conditions or limitations on a member's certificate of registration. This is aimed at prohibiting the practice of allowing a member to continue to provide services to patients of a specific gender after an allegation or finding of sexual abuse.
  • Expand the grounds for mandatory revocation of a certificate of registration of a member who has sexually abused a patient to include sexual abuse involving "touching of the patient's genitals, anus, breasts or buttocks" and other conduct that may be provided for in regulations made by the Minister.
  • Require mandatory suspension of a member in sexual abuse cases other than those requiring mandatory revocation.
  • Expand the Colleges' sexual abuse program in order to make funding available for patient therapy and counselling when a complaint of sexual abuse is alleged (but not yet proven). The Minister is given the power to require additional funding for other purposes by regulation.
  • Increase the penalties for failing to report sexual abuse.

Other Amendments

(i) Expanded ICRC Suspension Powers

The proposed amendments would give the Inquiries, Complaints and Reports Committee (the "ICRC") and its panels the power to suspend a member from practising after receiving a complaint or report if it is of the opinion that the conduct of the member or the member's physical or mental state exposes or is likely to expose the member's patients to harm or injury, instead of only when a matter is referred for discipline or incapacity proceedings. Other than in extraordinary circumstances that require urgent intervention, the member will need to be provided notice and given an opportunity to make written submissions before such an order is made.

(ii) Expanded Transparency and Public Posting Requirements

The Bill proposes to expand the matters that Colleges are required to set out in their public registers to include:

  • a notation of every caution that a member has received from a panel of the ICRC and of any continuing education or remedial programs that the member is required to undergo by a panel of the ICRC;
  • the date of referral and status of every matter referred by the ICRC to the Discipline Committee;
  • a copy of the notice of specified allegations for every matter that has been referred by the ICRC to the Discipline Committee that has not been finally resolved;
  • a notation and synopsis of a member's acknowledgements or undertakings in relation to professional misconduct and incompetence;
  • the names of former members of the College, and where a former member is deceased, their date of death, if known to the Registrar;
  • where the College has an inspection program established under clause 95 (1) (h) or (h.1) (relating to premises and materials used in connection with the practice of the profession), the outcomes of inspections conducted by the College; and
  • additional information where the Minister makes a regulation prescribing same (under new regulation-making powers, the Minister will be permitted to specify such additional information by regulation).

The Bill proposes to expand the term "result," as it is used in the context of the register's publication requirements, to include the result of failure to make a finding.

The Bill will require that information be posted to the register "within a reasonable amount of time" from having received it. The Registrar will also be required to correct incorrect or inaccurate information contained in the register. The member must demonstrate, to the satisfaction of the Registrar, that the information is incomplete or inaccurate and must provide the necessary information to enable the Registrar to make the correction.

Finally, Colleges will be required to post information about upcoming meetings of the Council on their websites, including the dates of those meetings and matters to be discussed at those meetings. The public can be excluded from Council meetings, but the posting on the website will need to note the reason for the exclusion.

(iii) Other Changes

Other proposed amendments include those to:

  • Increase self-reporting obligations to require members to report to the Registrar: (a) if there has been a finding of professional misconduct or incompetence against them by a professional body outside Ontario that they belong to; (b) if they are charged with an offence (and must also provide information about any bail conditions).
  • Give powers to the Minister to require the Council to include in its reports to the Minister personal information and personal health information about any member of the College to the extent necessary in order to allow the Minister to determine (i) if the College is fulfilling its duties and carrying out its objects or (ii) if the Minister should exercise certain of the Minister's powers. This power will be limited to only information that is required for such purposes, and no more than is necessary.
  • Expand section 36.1 (which allows the Minister to require a College to collect information from members) to permit such collection for the purposes of health human resources research.
  • Expand the powers of the Minister to make regulations governing the composition of College committees and panels, as well as governing the qualification, disqualification, selection, appointment, terms of office and removal of disqualified members of committees. Colleges also have the power to regulate these matters through their by-laws; however, these by-law making powers will be subject to regulations made by the Minister.

Laboratories and Specimen Collection Centres

Extensive changes are also proposed to the Laboratory and Specimen Collection Centre Licensing Act ("LSCCLA"). The LSCCLA governs the establishment, operation and maintenance of laboratories and specimen collection centres under a licence issued under the Act. Both laboratories and specimen collection centres will be provided for in a new proposed definition for "laboratory facility," aimed at making the Act simpler and easier to read. The current LSCCLA makes it a condition of a licence for a laboratory that the laboratory meet the requirements of a quality management program. The Bill proposes that this condition be extended to licences for a specimen collection centre. The Bill extends the terms for provisional and non-provisional licences, subject to the discretion of the Director of Laboratory and Specimen Collection Centre Licensing. The Bill also gives the Director the power to suspend a licence for laboratory facility on an emergency basis. The Bill further provides for significantly enhanced investigation powers; broader regulation-making authority; and broader offence provisions for directors, officers, employees and agents of a corporation. 

Two other consequential changes are proposed to the Health Insurance Act and Public Hospitals Act:

  • The Health Insurance Act will be amended to permit the Minister to enter into arrangements with health facilities (which include laboratories) insured services on a basis other than fee for service, for example through bundled payments. Currently the ability for the Minister to do so is limited to physicians and practitioners.
  • The Public Hospitals Act will be amended to allow the Minister to designate public hospitals to provide community laboratory services. The definition of "community laboratory services" means the services of a licenced laboratory or specimen collection centre that are provided by a public hospital that has been so designated to persons who are neither in-patients nor out-patients of the hospital (in other words, to the general community).

The Ontario Drug Benefit Act

The Bill proposes to add a new definition to the Ontario Drug Benefit Act for a "registered nurse in the extended class." The Bill proposes to make amendments to the Act to provide for prescriptions by registered nurses in the extended class, as well as by physicians. A new regulation-making power is introduced, which would allow a regulation to incorporate other documents, as amended, by reference after the regulation is made.

The Seniors Active Living Centres Act, 2016

The Bill proposes to repeal and replace the Elderly Persons Centres Act with a new Act. Under the new Act, an operator will be able to apply for approval to receive funding from the Minister Responsible for Seniors Affairs to establish, maintain or operate a seniors active living program. The director appointed by the Minister would be required to approve a program on being satisfied that its purpose is to promote active and healthy living, social engagement and learning for persons who are primarily seniors by providing them with activities and services.

It will be a pre-condition, however, that the local municipality where the program is located (or other relevant entity, if not located in a municipality) agrees to make a matching contribution to the operator of the program — otherwise the program will not receive the provincial funding.

There are broad regulation-making powers under the Act.

The Immunization of School Pupils Act

The Bill proposes that the Immunization of School Pupils Act be amended such that parents who want to exempt a pupil from completing a prescribed program of immunization must first complete an immunization education session before filing the required statement of conscience or religious belief. The Bill proposes to expand the categories of persons who may provide statements regarding the administration of immunizing agents to "prescribed persons". Further, it is proposed that those who administer immunizing agents be required to provide information not only to the pupil's parent, but also to the local medical office of health.

We plan to keep readers apprised of developments as the Bill advances through the Legislature.

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