Update: BC’s New Health Professions Act

Regulators and members of most health professions in British Columbia have been significantly impacted by changes to the Health Professions Act that came into force in between October 2008 and Spring 2009.

The Act governs the conduct of health professionals including occupational therapists, physical therapists, dental hygienists, dental technicians, denturists, dieticians, nurses, massage therapists, midwives, naturopaths, opticians, psychologists, traditional Chinese medicine practitioners, audiologists and speech-language pathologists (these latter two professions became regulated professions in British Columbia effective April 1, 2010).

Changes to the Act relate to the powers of regulatory bodies, scope of professional practice and procedures regarding handling of complaints against professionals.

This summary discusses how some of those changes could impact regulation of health professionals in British Columbia.

1. Health Professions Review Board (s. 50)

The most significant change to the Act is the creation of the Health Professions Review Board (“Review Board”), which is the second such review board in Canada. The stated purpose of the Review Board is to monitor the activities of health profession Colleges regarding registration and complaint disposition, by ensuring those activities accord with the public interest and the legislative mandate. The Review Board is touted as a neutral forum for complainants and health care professionals to seek review of College decisions.

The Review Board began accepting applications for reviews in March 2009. It must be chaired by a member, or former member, of a Canadian Law Society. Review Board members cannot be government employees or members of any health profession subject to the Act or an equivalent enactment in another jurisdiction. The restrictions on composition may impact the established self-government of health professions, especially given the extent to which specific professional expertise informs decisions regarding both registration and complaints.

The Review Board has the power to review the action or inaction of a College in three key areas:

(a) registration;

(b) informal resolution of complaints; and

(c) timeliness of complaint investigation by an Inquiry Committee.

(a) Registration (s. 50.54 and see s. 20)

The Board will review decisions regarding registration of professionals where an application for registration has been refused (or where only a conditional registration has been granted) by the Registration Committee of a College or a person acting on their behalf. The types of refusal decisions that can be reviewed are restricted.

If the Review Board receives a proper application for review, it must revisit the registration decision. It has the power to confirm the refusal, direct the Registration Committee to make a different decision, or allow the Registration Committee to reassess the application but with directions from the Review Board.

There are limited circumstances where the Review Board can direct the Registration Committee to grant registration; the refusal must have been improper and the Board must be satisfied that the applicant has the necessary skill and knowledge for registration.

 (b) Timelines for Disposition of Complaints (s.50.55-50.58)

The Act now contains prescribed time periods within which the Inquiry Committee of a College must address complaints. If a complaint has not been dealt with by the College within these time periods, the Inquiry Committee must notify the complainant and the member that the deadline has passed. It must also inform the parties about their rights to seek a review of the complaint investigation.

If an application for a review of the investigation is made, the Inquiry Committee must stop investigating the complaint. In response, the Review Board can send the matter back to the Inquiry Committee with directions or act in the place of the Inquiry Committee by investigating the complaint and deciding how to deal with it.

(c) Inquiry Committee Informal Resolutions – Non-Disciplinary (s. 36)

If the Inquiry Committee of a College decides to dismiss a complaint or resolve it by way of a consent agreement (“reprimand or remedial action by consent”, s. 36), it is obliged to deliver a written summary of the consent or undertaking to the complainant and advise him/her of the right to apply to the Review Board to seek its review of the decision.

Complainants must receive notice of decisions made in respect of their complaint. They can apply for a review within 30 days of receiving the notice. If the Review Board receives such an application, it must conduct a review and consider the adequacy of the investigation and the reasonableness of the disposition. The Review Board can also hear new evidence. After the review, they may confirm the previous decision, direct another disposition, or send the matter back for reconsideration.

2. Publication of Consent Resolutions (s. 39.3)

In many situations where a complaint is resolved by a consent agreement or a consent order, Colleges are required to notify the public. This may be done by a brief notice on the College’s website that generally identifies the member by name and outlines the nature of the complaint.

3. Patient Relations Program (s. 16(2)(f))

Certain designated Colleges are now required to establish a patient relations program to seek to prevent sexual misconduct. [An earlier proposed section of the Act (proposed 39.4) had sought to oblige the Colleges to provide funding for complainants who are psychologically/emotionally harmed by the professional misconduct of registrants.]

4. Complaints in Other Jurisdictions (s. 39.1 and see s.39.2(2))

Colleges are now entitled to restrict the practice of their members if they learn that another regulatory body for health professions found the person committed an act that the College views as professional misconduct. Before the College takes steps against the member in such circumstances, the member is entitled to notice and the opportunity to provide a response.

Want to know more? Contact any member of the Harper Grey LLP Professional Regulation group at (604) 687-0411.