Promotion of Patient’s Rights of Regulatory Concern

On December 12 2006 the Ontario government introduced a bill into the legislature that will amend the Regulated Health Professions Act intended to enhance the health professional regulatory colleges’ complaints procedures by giving patients increased access to information, improved communications and streamlined processes. At the present time the 23 colleges (to become 27 under the legislation) each has its own committee structure which will now be standardized into one committee for each college to be known as the Inquiries, Complaints and Reports Committee. Additionally the colleges will be required to share practice and disciplinary information with complainants and where the public is at risk make public the existence of an ongoing investigation and on the completion of the investigation suspend a member pending a hearing where the college believes the continued practice of the professional poses a serious public risk.

This legislation will provide an opportunity to test the application of the Supreme Court of Canada’s decision in Edwards v. LSUC, [2001] 3 S.C.R. 562, 2001 SCC 80 (CanLII) in which the court ruled that no prima facie duty of care arose between the governing body regulating lawyers and members of the public who deposited money into a solicitor’s trust account as participants in a third-party business promotion and in any case such a duty of care would have been negated by residual policy considerations outside the relationship of the parties. In assessing the risk of liability for failure to take steps upon the apprehension of risk to the public the colleges will do well to consider the subsequent decision of the court in Finney v. Barreau du Quebec, [2004] 2 S.C.R. 17, 2004 SCC 36 (CanLII). There the court held in the case of duties relating to the management of disciplinary cases, it would be contrary to the fundamental objective of protecting the public to require evidence of malice or intent to harm in order to rebut the presumption of good faith which would cloak the governing body with immunity from legal action from aggrieved members of the public. Evidence of serious carelessness or recklessness in the discharge of its duties would be sufficient to attract liability in failing to meet the standards required by the fundamental mandate of protecting the public. The proposed legislation makes no provision for modification of the immunity regime for the regulated health professional colleges.

The Health Professions Procedural Code is also amended to require mandatory reporting by a person who operates a facility where one or more members practise if the person has reasonable grounds to believe that a member who practises at the facility is incompetent or incapacitated, in addition to the current requirement that a mandatory report be made for suspected sexual abuse of a patient. While the term incapacitated is defined for the purposes of the legislation to mean a member is suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the member’s practice be subject to terms, conditions or limitations, or that the member no longer be permitted to practise, no definition is provided for the term incompetent. If the inclusion of this term is intended to extend beyond issues of mental competency and impose a requirement related to the ability to carry out professional duties then this should be clarified in the final text of the legislation. In any event all health care facilities will now need to review their oversight mechanisms to account for this added requirement.

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