The Rising Tides of Health Professional Regulation

1. The Rising Tides of Health Professional Regulation

2. When I Started, There was no: • Health Professions Act; • Criminal Records Review Act; • Freedom of Information and Protection of Privacy Act; • Personal Information Protection Act; • Labour Mobility Act; • Health Care (Consent) and Care Facility (Admission) Act.

3. A superficial example indicating the legislative complexity of health regulation comes from the College of Pharmacists: • Before 1994, that College was regulated by the Pharmacists Act, 10 pages; • 1994 – PPODS, 27 pages; • 2009, its statutory mandate divided between the HPA – 75 pages and PODSA – 14 pages, not including the Regulation and College bylaws.

4. Impact of Legislation • The addition of Part 4.2 of the Health Professions Act – Health Professions Review Board; • Amendments to the Health Care (Consent) legislation – advanced directives; • Colleges and the Privacy Commissioner.

5. Health Professions Review Board • 14 members, including a chair; • Executive Director; • Office & administrative staff in Victoria; • Website: www.hprb.gov.bc.ca; • Practice Directives eg. content of the record, filing, time limits filing a record and time limits established; • Mandatory Mediation; • Rules & Forms to follow. .

6. Mandate of the Review Board – Section 50.53 • Will review registration decisions refusing to grant registration or imposing limits or conditions on practice; • Will review failures by the Inquiry Committee to dispose of a complaint or complete an investigation within the time required (120 days); and • Will review a disposition of a complaint where no further action taken, or where a consent agreement has been reached and complainant is dissatisfied with its terms.

7. Health Professions Review Board – Procedures to Note • If the Committee has not been able to dispose of a complaint 120 days from receipt by the Registrar, it must deliver notice and an expected date of disposition to the registrant and complainant - s.50.55(2); • If this date is missed, notice must be given with reasons for the delay and a new expected date of disposition to the registrant, the complainant and the Review Board - s.50.55(4); • If the next date is missed, notice must be given again, the investigation is suspended until the time period for an application for review has expired – s.50.56.

8. Powers of Board – Delayed Investigations S.50.58 • The Board is authorized to consider the adequacy of the investigation and the reasonableness of the disposition; • May send the matter back to the committee with directions to continue and complete the investigation and dispose of the matter within a time period directed by the review board; • May investigate and dispose of the matter under s.33(6) itself.

9. Registration Review – Board Powers • May confirm the decision, direct the committee to make another decision in accordance with the Act or send the matter back to the Committee for reconsideration - S.50.54(9); • May direct the committee to register a person with or without conditions if satisfied that the committee did not act fairly, made the decision arbitrarily or in bad faith, for an improper purpose or based on irrelevant factors (S.50.54(10)).

10. Power of Board – Procedures • S.50.6 and 50.61 contain several procedural provisions; • Review on the record, but can hear evidence if reasonably required for a full and fair disclosure of all matters; • May confirm the decision, direct the committee to make another disposition or send it back for reconsideration with directions.

11. Some HPRB Decisions • Involved reinstatement –bad timing and bad facts; • Applicant given some misinformation about requirements to reinstate & rules change just prior to 3 year deadline for completion of a clinical skills exam; • She did not take the exam - denied reinstatement; • Review Board required her application to be assessed on substantial equivalency basis; • Wrongly decided, but no appeal. • College of Chiropractors, 2009-HPA-0033(a)

12. Decision No. 2010 – HPA -0185(b) – the College of Dental Surgeons refused to refer a complaint regarding a financial dispute between a dentist and patient to the IC on the basis that such a complaint was not within its jurisdiction. • The HPRB disagreed – a financial arrangement could constitute professional misconduct and therefore must be investigated.

13. Decision No. 2010-HPA-0003(a) • Complainant criticized treatment received from a dentist including veneers that had fallen off, replacement and removal of crowns, and treatment of certain teeth. The registrant responded that her problems were caused by natural tooth decay, teeth grinding, irregular attendance for hygiene visits and refusal to have radiographs.

14. The complainant criticized the investigation which consisted of considering the complaint, obtaining detailed information, the chart and patient records from the registrant and others who treated the patient, digital radiographs and a 4 page chart analysis. • Meetings and consultations were held with the registrant and another practitioner who had treated the complainant. There were some records available but not obtained from other treating practitioners. • The IC decided to take no further action. The treatment was appropriate and met the standard.

15. The HPRB said: • A complainant is not entitled to a perfect investigation – it must be adequate; • What is adequate depends on the facts; • It does not need to be exhaustive to be adequate, provided reasonable steps were taken to obtain key information that affects the assessment of the complaint; • The degree of diligence in the investigation required to be adequate varies from complaint to complaint;

16. Consent to Health Care & Legislation • Health Care (Consent) and Care Facility (Admission) Act codifies the common law criteria to obtain valid consent to health care from an adult (S.6 - 9); • Establishes a system of substitute decision making, including a default list of temporary substitute decision makers when there is no guardian or representative (S.11,16).

17. Adult Guardianship and Planning Statutes, Bill 29, C.34 • Amends the Health Care (Consent) legislation effective September 14, 2011 by adding a definition of “advanced directives”; • Permits adults to give instructions to give or refuse consent to a particular health care, in advance, provided the adult is capable at the time of giving those instructions and the requirements of the Act are met; • Creates a new system of guardianship – for example, committeeships under the Patients Property Act will be abolished.

18. Access to Information & Privacy Rights • Order No. 214-1998: The Society of Massage Therapists requested the College to provide its mailing list for registrants. The College refused on the basis that disclosure was prohibited by S.33(3)(j) which does not allow personal information to be disclosed if it will be used for mailing lists or solicitation by telephone or other means. • At the time, the College register did not distinguish between work and home addresses. • The Commissioner upheld the College refusal.

19. Order F-11-10, March 31, 2011. The applicant for information had lost his registration in the College of Physicians and Surgeons. He made numerous FOI requests to the College, sued it unsuccessfully in defamation, made a complaint to the Ombudsman which did not proceed and unsuccessfully complained to the Human Rights Tribunal; • One of his FOI requests sought contact information for certain individuals;

20. The College refused to disclose the information on the basis that the applicant would harass those individuals and that this constituted harm within the meaning of the Act, such that the College was not obliged to disclose it. • The Commissioner did not accept this argument saying that the College’s concern did not meet the test of “serious mental distress or anguish by harassment”. Frustration or annoyance was not enough.