TRUSTED ADVISOR AND ADVOCATE
TRUSTED ADVISOR AND ADVOCATE
Health professionals in Ontario are regulated by their respective “college”. College mandates all relate to protecting the public through requiring and maintaining qualifications and standards of practice. To achieve this, colleges initiate administrative actions against a health professional or corporation such as refusing/revoking registration, hearing complaints, exercising discipline, holding fitness hearings, and laying charges.
The procedure for these administrative actions are nearly the same for all health professionals and primarily outlined in the Regulated Health Professionals Act, 1991 ("RHPA"). Each profession also has their own legislation that corresponds with their college (ex. Chiropractic Act, 1991). The following are all the Ontario health professionals with their respective college and "home" legislation:
Burokas Law acts as a health professionals lawyer in representing all health professionals and corporations. If you’re applying to your college, need advice, or facing an administrative action from your college, its important that you obtain legal representation to ensure your rights and interests are best protected. Services include:
Specific Health Profession Acts ("Home Legislation")
Each health profession's home legislation creates additional laws relevant to the specific profession and act to supplement the general rules in the Regulated Health Professionals Act, 1991. Each act creates a “council” for their college that acts as its governing body; providing direction, policy, and oversight of the college’s performance. The council is typically a combination of members elected by the members of the profession and appointments by the Ontario Government.
Each specific health profession act provides both a “scope of practice” outlining the profession's general practices; and “authorized acts”, which is a detailed list of specific medical procedures an individual must obtain registration to practice. For example, in the Medicine Act, 1991, the “scope of practice” for medical doctors is:
“The practice of medicine is the assessment of the physical or mental condition of an individual and the diagnosis, treatment and prevention of any disease, disorder or dysfunction”.
Whereas an “authorized act” for a medical doctor includes anything from “setting or casting a fracture of a bone or a dislocation of a joint” to “managing labour or conducting the delivery of a baby”.
To act within the defined scope of practice and conduct an authorized act, the health professional must be registered with the corresponding college.
Each specific health profession act has multiple regulations. The most relevant to health professionals are the “Registration” and “Professional Misconduct” regulations.
The Registration regulations outline the numerous exemptible and non-exemptible standards and qualifications an individual must possess in order to be registered by their college and therefore be permitted to practice the “authorized acts” that make up their profession. These standards and qualifications differ amongst the varies health professions but generally include, among many other things, the following:
Professional Misconduct Regulations
These regulations list the ways a member can be found by a discipline committee to have committed “professional misconduct” specific to a profession. For example, it is professional misconduct for a Psychologist to:
Each profession have their own list of acts constituting professional misconduct.
Regulated Health Professional Act (“HRPA”)
The Regulated Health Professional Act, 1991 was created to streamline and standardize the procedures of the various committees (listed below) of each health college, while retaining the specific substantive law relevant to each profession (as outlined in the specific health profession acts).
Schedule 2 of the HRPA is the Health Professions Procedural Code (“the Code”) that provides most of the jurisdiction to colleges to take administrative action. Administrative is action is typically initiated by a “Registrar”, an employee of a college that makes initial administrative decisions regarding:
The Registrar represents the interest of the college in pursuing their mandate. Their decisions are not final but rather the first step in the administrative process. His/her decisions are first reviewable by various committees depending on their nature.
The act mandates each college have the following committees that together comprise the bodies that exercise administrative authority over health professionals in Ontario:
The executive committee of a college acts as it’s decision making body between regular meetings of Council. It reports to Council and has all it’s powers, except the power to make, change, or revoke regulations and by-laws.
A registration committee receives referrals of applications for registration from the Registrar who has doubts that the applicant fulfills registrations requirements, wants conditions on an individual’s registration, or otherwise is proposing to refuse the application. A panel of the Registration Committee reviews the Registrar’s decision and either directs the Registrar to issue a certificate of registration, conditionally or unconditionally, or directs the Registrar to refuse to issue a certificate of registration. Before a decision is made, an applicant has the right to make written submissions to a panel regarding the Registrar’s position. If the registration committee orders conditions on an individual’s registration, that member can ask the committee to vary those conditions after 6 months.
Reviews of the Registration Committee decision are heard by the Health Professions Appeal and Review Board (see below).
Inquires, Complaints and Reports Committee
The Inquires, Complaints and Reports Committee (“ICRC”) sits as a panel of three and investigates complaints filed with the Registrar about a member or considers investigation reports already initiated by the Registrar. The ICRC also has the power to issue interim suspensions or conditions/limitations on a member’s registration if patients are actually or potentially exposed to harm or injury.
After reviewing an investigation report or conducting it’s own investigation, a panel of the ICRC may refer the allegation of professional misconduct or incompetence to the Discipline Committee, caution the member, require continuing education or training, or take any actions considered appropriate that is not inconsistent with the RHPRA or the relevant health profession act.
There is also an alternative dispute resolution process that may be entered into if all parties agree and the allegation does not involve sexual abuse.
The ICRC may also receive referrals from the Registrar regarding an individual's capacity and make a determination whether the member has the capacity to practice in a profession. In this context, the ICRC can require a member to submit to physical and mental examinations if it has reasonable and probable grounds to believe the member is incapacitated and may suspend the member’s registration. After receiving a medical report, the ICRC may refer the member to the Fitness to Practise Committee and order interim conditions or a suspension.
The Health Professions Appeal and Review Board can review decisions of the ICRC upon request, except decisions to refer a member to the Discipline committee or commence incapacity proceedings.
The Discipline Committee hears referrals of a members professional misconduct or incompetence from the ICRC. Unlike the previous committees that conduct “reviews”, the Discipline Committee holds “hearings” where evidence is presented similar to a trial in court with some modification. Similar to other committees, the Discipline Committee operates in panels between three and five members.
Prior to a hearing, the member under review is provided with all the evidence that is planned to be used against him or her so they can prepare their defence, subject to some privacy exceptions and limitations. Hearings are generally open to the public.
After a hearing, the Discipline Committee decides whether the member committed an act of professional misconduct and then decides consequences. The Discipline Committee shall find professional misconduct if:
If professional misconduct is found, the Discipline Committee may revoke the member’s registration, suspend registration, impose conditions, reprimand the member, fine them up to $35,000, or, if the. misconduct involves the sexual abuse of a patient, require the member to reimburse the College for amounts provided to the victim for counselling. Serious sexual abuse requires the Discipline Committee to revoke a member’s registration.
A Discipline Committee panel may find a member incompetent if “the member’s professional care of a patient displayed a lack of knowledge, skill or judgement of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted". As a result of an incompetence finding, a panel can revoke, suspend, or impose conditions/limitations on a member’s registration.
The decisions of the Discipline Committee are published and therefore accessible to the public.
Fitness to Practise Committee
The Fitness to Practise Committee sits as a panel of at least three and hears referrals from the ICRC. It reviews expert reports and hears testimony from the medical experts who provided them. If the Fitness to Practise Committee finds a member is incapacitated, it shall revoke, suspend, or impose conditions/limitations on that member’s registration.
Quality Assurance Committee
The Quality Assurance Committee appoints “assessors” who are granted inspection powers. Members are obligated to allow assessors to inspect a member’s practice and records. If a member’s knowledge, skill and judgement are found to be unsatisfactory, the committee can order them to participate in continuing education or remediation programs, impose conditions/limitations on their registration, or make referrals to the ICRC regarding professional misconduct, incompetence, or incapacity.
Health Professions Appeal and Review Board
The Health Professions Appeal and Review Board (“HPARB”) conducts either reviews or hearings of certain decisions of the ICRC (reprimands, education, other orders) and all decisions of the Registration Committee. The HPARB is independent of a college and has it’s own rules of practice and practice directions.
For applicants appealing a decision of the Registration Committee, they have the option of choosing either a documentary review or an oral hearing. After which, the HPARB may confirm the Registration Committee’s order, order the Registrar to register the applicant on certain conditions, or refer the matter back to the Registration Committee with recommendations.
For members seeking review of specific ICRC decisions, the HPARB reviews the adequacy of it’s investigation and/or the reasonableness of the Committee’s decision. After a review, the HPARB may confirm all or part of the ICRC’s decision, make recommendations, or require the ICRC to do things such as further investigate, take no further action, require remediation, or refer the member to the Discipline Committee.
The RHPA creates quasi-criminal offences prosecuted under the Provincial Offences Act in the Ontario Court of Justice. They include:
Individuals found guilty of these offences can face fines up to $25,000 ($50,000 for second/subsequent offences) and one year imprisonment. Findings of guilt under the HRPA do not create a criminal record but will severely prejudice an individual’s or corporation’s ability to practice in their health profession.
If you are a health professional applying to a college, require compliance advice, or are subject to an administrative action by a college, please don't hesitate to contact Burokas Law to ensure your rights and interests are protected.