The Health and Supportive Care Providers Oversight Authority
Bill 283 establishes a corporation called the “Health and Supportive Care Providers Oversight Authority” (the “Authority” (s. 2), governed by a board of 8-12 directors (s. 4(2)). The qualifications for sitting on the Board will be determined by regulation and the Authority’s by-laws (s. 4(6)). The Board will appoint one of its employees to be the Chief Executive Officer (s. 10(1)). The Statutory Powers Procedure Act does not apply to anything done by the CEO, except as may be provided in regulation (s. 10(4)).
The board is to establish an advisory committee for each class of registrants (including PSWs) to advise the CEO about issues pertaining to that class of registrants (s. 11(1)) and each advisory committee shall include: a) one or more individuals who represent the interests of those who receive services from the class of registrants, b) one or more individuals who are registrants in the class of registrants, and one or more individuals who are educators of the registrants in that class of registration (s. 11(2)).
The Authority’s objects include establishing and maintaining educational and skills-based qualifications for each class of registrants, establishing and maintaining one or more visual marks or identifiers for use by registrants that can identify registrants to the public, to establish and maintain codes of ethics for each class of registrants, among other objects (s. 12).
The Authority will enter a Memorandum of understanding with the Minister of Health (the “Minister”). The Minister can step in to supervise the Authority if it it is required in the public interest.
Unlike professionals regulated by Colleges under the Regulated Health Professions Act, the Bill does not prevent non-registered PSWs from working as PSWs. However, non-registrants are not permitted to use the visual mark or other identifier established by the Authority or to hold themselves out as a registrant (s. 37).
The CEO shall establish a public registry that lists the name of registrants and any other information set out in regulation of the Authority’s by-laws (s. 32(1)).
Registrants are required to file a report with the Authority if found guilty of an offense (other than offences that may be set out in regulation) (s. 33(1)). Registrants are also required to file a written report with the Authority if they have “reasonable grounds” to believe another registrant has sexually abused a person who receives health services or supportive care services (s. 35(1)). The registrant also has an obligation to report to a College if a member of a College (under the Regulated Health Professions Act) has sexually abused a person receiving services or supportive care services.
There are similar obligations on members of Colleges under the RHPA.
Applications for Registration
An applicant may apply to the Authority for registration or renewal of registration within the PSW class of registration (or other classes, as may be prescribed) (s. 26).
The applicant is entitled to registration/renewal of registration unless the CEO refuses to grant the application (s. 27(1)). The CEO may request from the applicant any information the CEO specifies that is relevant to the decision of whether or not to grant the registration/renewal and may request verification of the information requested (e.g., by affidavit or otherwise)(s. 27(2)).
The CEO has the power to approve the registration or renewal and/or impose conditions on registration at any time that the CEO considers appropriate. The CEO must provide notice in writing of those conditions (unless the applicant has consented to those conditions)(s.27(3),(4)).
The CEO “shall” refuse to register/renew registration or revoke registration if the registration meets “prescribed prohibited grounds” for registration (s. 28(1)). As well, the CEO “may” refuse to grant/renew registration if the applicant does not meet “prescribed criteria for that class of registration) (s. 28(2)).
The applicant/registrant is entitled to notice in writing if the CEO proposes to refuse to grant or renew the registration, revoke the registration or impose conditions on the registration or renewal (s. 28(4)).
Review of CEO’s Refusal to Renew/Revocation of/Conditions Imposed on Registration
The applicant has the right to request a “review in writing” with the Health Professions Appeal and Review Board (“HPARB”) (s. 28(6)). The HPRAB shall conduct a “written review” in accordance with “the procedures provided for in the regulations, if any” (s. 29(1)). A written review by the HPARB is not a proceeding under the SPPA, except as provided in regulations (s. 29(2)). The HPARB may direct the CEO to carry out the CEO’s proposal or substitute its own opinion for that of the CEO, which may include granting, refusing to grant or applying conditions to registration (s. 29(3)).
Under the Regulated Health Professions Procedural Code (“RHPPC”), where a panel of the Registration Committee makes an order affecting the registration status of an applicant, the applicant has a right of appeal to the HPRAB. However, unlike under Bill 283, which contemplates only a “review in writing,” under the RHPPC, an applicant has the right to request either a review in writing or a hearing of the application. As well, Bill 283 does not specify what evidentiary rules apply, if any, to a review in writing. In contrast, the RHPPC specifies rules with respect to the disclosure of evidence that apply regardless of whether the appeal is a written review of hearing and incorporates evidentiary rules and rules of procedure regarding a hearing, including the right to a legal representative.
Complaints and Investigations
The CEO may investigate a complaint received about a registrant and may request information about the complaint from any person (s. 38(1)).
The CEO may appoint investigators for the purpose of investigating complaints received by the CEO or where the CEO has reason to believe the registrant has breached the Act, regulations or code of ethics (s. 39(1)). Section s. 33 of the Public Inquiries Act, 2009 applies to the investigator’s inquiry and examination. Investigators have the power to enter a place where the registrant provides services or where relevant documents are located, and can enter into dwellings with consent or under the authority of a warrant issued by a justice of the peace (ss. 39(6), 40, 41). Investigators have broad powers to obtain documents/evidence.
The RHPA also provides for the appointment of investigators, who are given similar powers contemplated by Bill 283. However, while the RHPPC specifies a duty on the Registrar to report the results of an investigation to the various committees, Bill 283 does not specify the outcome (i.e., a report or other outcome) of an investigation and what will be done with that report.
Resolution of Complaints or Investigations and Appeals
Anytime following the receipt of a complaint or following the appointment of an investigator, the CEO may do any of the following:
- Attempt to mediate or resolve the complaint.
- Give the registrant a written warning.
- Require the registrant to take further educational courses or training.
- Impose conditions on the registration (which are subject to s.28 (ie., right to review by the HPARB)).
- Refer any contraventions of the code of ethics to the discipline committee.
- Take any further “prescribed actions” the CEO considers appropriate (s. 44).
Under the HPPC, after investigating a complaint or report, a panel (of the Inquiries, Complaints and Reports Committee) may refer the allegation to the discipline committee, refer the member to a panel for incapacity proceedings, require the member to be “cautioned” or take action that it considers appropriate, not inconsistent with the Act.
In contrast, Bill 283 does not mention the possibility of incapacity or separate proceedings/consequences where the registrant’s performance may be impacted by incapacity.
In addition, while the HPPC contemplates a “caution”, which is considered a non-disciplinary notation (and often is imposed along with remediation), it is unclear whether a “written warning” constitutes discipline or not.
Furthermore, while under the HPPC, a complainant or member can apply to the Board to request a review of a decision of the Inquiries, Complaints and Reports Committee (other than a decision to refer to the discipline committee or for incapacity proceedings), there does not appear to be a review mechanism under Bill 283 to review the decisions of the CEO under s. 44 (other than decisions to impose conditions on the registration).
The CEO may impose interim conditions on a registrant’s registration, without notice, if the CEO believes on reasonable and probable grounds that the conduct of the registrant exposes or is likely to expose members of the public who receive health services or supportive care services to harm or injury and that urgent intervention by the CEO is needed (s. 45(1)).
The RHPPC also provides for interim suspension/terms/conditions the Inquiries, Complaints and Reports Committee believe are necessary to prevent harm or injury to patients.
The board will establish a discipline committee to hear and determine issues concerning whether registrants have failed to comply with the prescribed code of ethics. The discipline committee procedures will be determined by regulation (46(1)). The SPPA does not apply to proceedings before the discipline committee (except as provided in regulation)(s. 46(2)).
If the discipline committee determines a registrant has failed to comply with the prescribed code of ethics, it may make an order directing the CEO to revoke, suspend, or impose conditions on the registrant’s registration (or take other action as may be prescribed) (s.46(4)). These actions of the CEO (done pursuant to an order of the discipline committee), are not subject to the requirements set out in s. 28, which requires the CEO give notice of a decision to refuse to register/impose conditions etc., and gives the registrant the opportunity to request a written review by the HPARB (s. 46(6)).
The discipline committee may specify criteria to be satisfied for the removal of a suspension or conditions imposed on registration (s. 46(7)). In certain prescribed situations, the discipline committee must order the CEO to revoke the registrant’s registration (s. 46(8)).
Under the HPPA, before a finding of professional misconduct or incompetence will be made, the member is entitled to due process through a hearing of a panel of the Discipline Committee. The member is entitled to be represented by counsel, is entitled to lead evidence and test the evidence against them through cross-examination. There are robust rules applicable to the disclosure and admissibility of evidence. Transcripts must be made of the proceeding. A number of provisions of the Statutory Powers Procedure Act (which set out rules of due process/evidence/procedure) specifically apply.
In contrast, Bill 283 is silent on whether a registrant will be entitled to a full hearing and what, if any, procedural protections will be put in place. The SPPA is specifically excluded.
The board shall establish an appeals committee (in accordance with the regulations) to consider appeals from orders of the discipline committee (s. 47(1)).
A party to a proceeding before the discipline committee may appeal the final order of the discipline committee to the appeals committee in accordance with the regulations (s. 47(3)).
The appeals committee shall conduct any appeals “in accordance with the procedural requirements set out in the regulations, if any” (s. 47(4)). The SPPA does not apply to a proceeding before the appeals committee, except as may be prescribed (s. 47(5)).
The appeals committee may by order overturn, affirm or modify the order of the discipline committee and may make an order described in s. 44 (i.e., the actions the CEO may take in response to a complaint).
Decision of the discipline committee and appeals committee shall be made public (s. 48).
Under the HPPC, the member may appeal a decision of the Board concerning registration, or a decision of the Discipline or Fitness to practice panel to the Divisional Court. In contrast, Bill 283 provides no recourse to the courts, and does not specify whether the appeal committee will conduct a hearing (nor does it specify what the appeal process will be at all for that matter). Again, the SPPA is specifically excluded (unless otherwise prescribed).