New Directions for Health Regulation

On May 19, 2006, the Minister of Health and Long Term Care released the report entitled New Directions written by his advisory Council. The Health Professions Regulatory Advisory Council (HPRAC) report recommends comprehensive changes to the statute that governs the 21 health regulatory Colleges.

To many this report will come as a relief. An earlier report, released in 2001, contained a number of controversial recommendations that were widely viewed as impractical and perhaps even anti-practitioner. For example, the recommendation to give complainants party status at a discipline hearing was rejected on the basis that practitioners would then face two opponents. Similarly, the proposal that the regulatory Colleges fund a government-structured support program for some, but not all complainants, has not been repeated. In addition, the suggestion that the Discipline Committee be authorized to prevent the cross-examination of a complainant in sexual abuse cases in some circumstances has been dropped.

However, the report still contains significant proposals for change that will be interesting and challenging for all regulators. Many of the proposals relate to the complaints and investigative process.

HPRAC proposes that there be a single committee to conduct all investigations of member-specific concerns. This Inquiries, Complaints and Reports Committee will handle all complaints and reports of professional misconduct, incompetence and incapacity. Having a single body conduct all investigations will reduce the chances of inconsistent and uncoordinated handling of such concerns.

Further, a centralized internal record is to be kept of all such inquiries and their results. It is expected that the Inquiries, Complaints and Reports Committee will consult this record in all future investigations so that it is fully aware of the history of concerns about that member. HPRAC does not accept the argument that reviewing the past history at the investigation stage might create prejudice. HPRAC is more concerned that a practitioner with a significant history of “warning signs” will have a new concern about him or her considered out of context.

HPRAC proposes that practitioners be notified immediately when they are under investigation. This is in response to some situations in which there has been a significant time lag between when a complaint came in and the practitioner was notified. However, there are situations in which a regulator would want to obtain evidence first, before the practitioner was aware of the investigation (e.g., to secure documents where there is an allegation of altering them).

The disposition options of the Inquiries, Complaints and Reports Committee have been expanded. In particular the Committee can require the practitioner to complete a specified continuing education or remediation program. This is similar to an innovative feature in the Real Estate and Business Brokers Act, 2002. While no finding of wrongdoing will be made, the Committee might conclude that concerns of a similar nature can be avoided if certain remedial steps are taken.

The Inquiries, Complaints and Reports Committee can also require the practitioner to undergo a physical, psychological, practice or other assessment. Apparently this power will permit the Committee to pursue a situation where it is concerned that the alleged conduct may be part of a much larger problem or where it might be the result of an underlying health condition. For example, if a concern is expressed that a clinical error was made, a broader practice assessment could determine if this was the result of a one-time slip or of a broader deficit.

Like the Real Estate and Business Brokers Act, 2002, this report specifically addresses alternate dispute resolution (ADR). HPRAC was concerned that there were insufficient safeguards in place to ensure that the ADR process is fair, transparent and accountable. Thus HPRAC proposed the following:

·    There must be published rules about the ADR process.

·    A voluntary and informed consent must be obtained from both parties before the process is initiated.

·    A facilitator must be used (although the facilitator could be a member of the Inquiries, Complaints and Reports Committee).

·    ADR could not be used for serious allegations of sexual abuse.

·    Any resolution has to be approved by a statutory committee composed of both professional and publicly appointed members.

·        An internal, centralized record of every resolution must be maintained so that it can be reviewed if future concerns arise about the same practitioner.

One of the more controversial recommendations is the proposed expansion of the mandatory reporting duty. All registered health practitioners and facility operators must report any reasonable grounds that a registered health practitioner has engaged in professional misconduct or is incompetent or incapacitated. Similarly, any employer, partner or associate of a registered health practitioner must report any disciplinary action or any termination of the business relationship based upon professional misconduct, incompetence or incapacity.

An interesting amendment to the appeals process for decisions of the Discipline Committee is suggested. HPRAC recommends that for findings of serious professional misconduct, incompetence or incapacity that the order remain in place during any appeal. Further, HPRAC recommends that the courts not be permitted to stay, or suspend, those orders while the appeal is pending.

There are a number of other interesting and significant recommendations in the report. For a copy, go to www.hprac.org. Or, to sign up for a detailed analysis and seminar about the report, see www.sml-law.com.

FOR MORE INFORMATION

This newsletter is published by Steinecke Maciura LeBlanc, a law firm practising in the field of professional regulation. If you are not receiving a copy and would like one, please contact: Richard Steinecke, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON  M5H 2Y4, Telephone: 416-626-6897 Facsimile: 416-593-7867, E-Mail: rsteinecke@sml-law.com

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