On June 4, 2007, the Ontario Legislature passed the omnibus Health System Improvements Act, 2007 (“HSIA”), amending and creating multiple laws affecting health care in Ontario. The HSIA is organized into 18 Schedules which enact 6 new Acts and amend more than 12 existing Acts. Most of the Schedules became law on June 4, 2007. Some of the Schedules will only become law on a later date or a date to be proclaimed by the Lieutenant Governor. We briefly review some of the changes as they pertain to health care institutions and health care professionals.

Selected Acts Amended by HSIA

Health Protection & Promotion Act

The most significant amendments to this Act give the Ministry of Health and Long- Term Care extraordinary powers to address the outbreak of communicable disease or other immediate and serious risks to the health of people in Ontario.

The Chief Medical Officer of Health (“CMO”) is given the authority to order a public hospital or institution to take specific actions in respect to an outbreak of communicable disease on its premises. For example, the CMO is given extensive powers to investigate and address a “risk to the health of any persons”. The CMO may order a health information custodian to disclose any information, including personal health information, necessary to investigate, eliminate or reduce a serious and immediate health risk. The CMO may issue directives to health care entities and providers respecting precautions and procedures to be followed where an immediate health risk exists. The CMO may use previously collected specimens to investigate, eliminate or reduce an immediate and serious health risk, but may not compel an individual to provide a fresh sample without the individual’s consent.

The Minister of Health and Long-Term Care may seize premises for a temporary isolation facility if needed for an outbreak of communicable disease. The Minister may also seize medications and supplies where necessary to address an immediate health risk.

Other amendments are directed at enhancing the authority granted under, and the scope of, the Act. For example, the obligation to report a patient’s failure to comply with treatment for a communicable disease is extended so as to apply to a treating registered nurse as well as a physician.

The Superior Court of Justice is given broader powers to order compliance with the Act or its regulations.

Regulated Health Professions Act, 1991

Numerous amendments are made to this Act. Many amendments do not come into force until June 4, 2009, allowing a two year phase-in period.

The list of exceptions to the obligation to keep confidential information obtained in the course of duties under this Act is expanded. Colleges may disclose information to another body governing a profession in Ontario (the Act formerly only permitted disclosure to a governing body outside Ontario), confirm that they are investigating a member’s conduct if there is a compelling public interest in that information, and disclose information where the disclosure is believed necessary to eliminate or reduce a significant risk of serious bodily harm. These amendments became effective on June 4, 2007.

The Act is amended to mandate greater disclosure to the public about regulatory proceedings against health professionals. The College Registrars are required to maintain a register accessible to the public through the College’s website with a record of every matter referred to the Discipline Committee pending a hearing, the result (including synopsis of the decision) of every disciplinary and incapacity proceeding, every finding of professional negligence or malpractice unless reversed on appeal, and every resignation pursuant to an investigation by the Complaints Committee. Exceptions are made in certain circumstances, including where the Registrar has reasonable grounds to believe that the information is obsolete and no longer relevant to the member’s suitability to practice.

Formerly, the results of disciplinary and incapacity proceedings were generally only available to the public if the member’s certificate of registration was revoked, suspended or restricted, and were not required to remain on the register for more than six years unless the member was found to have committed sexual abuse of a patient. The amendments now require a member to apply for the removal of a finding of professional misconduct after six years and limit such applications to those who were reprimanded or fined. The member must convince a committee that the information is no longer relevant to his or her suitability to practice and is not outweighed by the desirability of public access. An exception is made for findings that a health professional committed sexual abuse of a patient, which finding will remain on the Register. Some Colleges were already providing electronic access to their Registers, but the law will now mandate it for all Colleges. The new requirements as to content include a notation of every finding of professional negligence or malpractice made against a member and resignations pursuant to an investigation where the member has agreed never to practise again in Ontario. The amendments stop short of requiring Colleges to include a complaint history or summary of outstanding complaints against their members, although, as mentioned, a College may confirm that it is investigating a member if there is a compelling public interest in that information.

The Complaints Committee will be replaced by the “Inquiries, Complaints and Reports Committee”, which will be the only committee with the authority to refer a matter to the Discipline Committee. At present, the Complaints and Executive Committees have the authority to make a referral. College processes will be further streamlined in that the Inquiries, Complaints and Reports Committee will take on the role of the Executive Committee and Board of Inquiry in connection with inquiries into whether a member is incapacitated.

The process for dealing with complaints is revised in a number of additional ways. The possibility of alternative dispute resolution (“ADR”) to resolve a complaint is introduced, provided that the parties agree. Formerly, there was no statutory authority for ADR, which made it difficult to integrate it into the complaints and discipline processes. Prior decisions involving a member may be considered by the panel investigating a complaint. The 30 day period for a member to respond to a complaint may be abridged if there are reasonable and probable grounds to believe the member’s conduct is likely to expose patients to harm. The time period by which the panel is required to dispose of a complaint is extended from 120 days to 150 days after the filing of the complaint.

A new power is granted to make an interim order suspending or restricting a member’s certificate of registration without notice to the member where an allegation is referred to the Discipline Committee or the Fitness to Practice Committee and there are reasonable and probable grounds to believe the member’s conduct is likely to expose patients to harm. Formerly, there was no exception to the 14-day notice period required prior to an interim order taking effect. The College may also apply to the Superior Court of Justice for an order directing that the revocation, suspension or restriction of a member’s certificate of registration take effect immediately, despite any appeal from a College proceeding, if the College is of the view that delaying the implementation of the penalty could cause harm.

Minimum requirements for a quality assurance program are now spelled out in the Act and include standards of practice, peer assessments and monitoring compliance. The Quality Assurance Committee is given powers to require members to take continuing education, direct the Registrar to impose or remove restrictions on a certificate of registration, and refer matters of professional misconduct, incompetence or incapacity for further investigation. Formerly, Colleges had more discretion over the nature of their quality assurance programs, which were created by regulation.

As mentioned, as of June 4, 2009, members will be required to file a written report with the Registrar of their College if they have been found guilty of an offence or professionally negligent in a court of law, whether or not the finding is relevant to their suitability to practise. These findings will be recorded in the Register, which, as mentioned, must be accessible to the public through a College’s website.

New Powers for Regulated Health Professions and New Regulated Professions

Some health professionals have been given expanded powers, while others are being regulated for the first time. Optometrists have been given the power to prescribe specified drugs. Kinesiology, naturopathy, homeopathy and psychotherapy have become regulated health professions. The scope of practice of these professions is defined in various profession-specific acts in keeping with the model of the RHPA. For example, the regulated profession of psychotherapy is defined as “the assessment and treatment of cognitive, emotional or behavioural disturbances by psychotherapeutic means, delivered through a therapeutic relationship based primarily on verbal or non-verbal communication”. The act of treating, by means of psychotherapy technique, “an individual’s serious disorder of thought, cognition, mood, emotional regulation, perception or memory that may seriously impair the individual’s judgement, insight, behaviour, communication or social functioning” will become a controlled act. Amendments will also be made to permit physicians, nurses, psychologists, social workers and other health professionals to engage in the controlled act of psychotherapy.

New Medical Audit System

The Health Insurance Act has been amended to create a new process for reviewing decisions by OHIP on payments to physicians for insured services. A number of these amendments are already in force, while the date when other amendments will come into force has yet to be established. The Medical Review Committee, a committee of the College of Physicians and Surgeons of Ontario which was the subject of a lengthy review and report by Mr. Justice Cory, will be eliminated, as will all other involvement of the College in reviewing OHIP payments. Three new committees will be responsible for the review process. The Joint Committee on the Schedule of Benefits will be responsible for interpreting the schedule of benefits upon the request of the General Manager of OHIP or a physician who has made a claim or received a payment that has been challenged by OHIP. The Minister of Health and Long-Term Care will appoint physicians to the Committee, but half of the members must be nominees of the Ontario Medical Association (“OMA”). The Physician Payment Review Board will be responsible for holding hearings to determine issues relating to the payment of physicians for insured services. Two thirds of the members of the Board will be physicians and all members will be appointed by the Lieutenant Governor in Council. The Minister will recommend the physician members, but half of those he recommends must be OMA nominees. In line with the recommendations in the Cory report, only physicians who are actively providing insured services will be appointed to the Board and the pool of eligible physicians is to be representative of a broad range of practices. The Physician Services Payment Committee will be responsible for proposing amendments to the schedule of benefits. Again, half of the physicians appointed to the Committee by the Minister must be OMA nominees. Until all of these amendments take effect, a panel of the Health Professions Appeal and Review Board known as the Transitional Physician Audit Panel is responsible for reviewing decisions where OHIP has refused to pay or pays a reduced amount for an insured medical service or requires a physician to reimburse OHIP for an amount paid for an insured medical service.

Other New Acts

A new Act aims to promote the use of automated external heart defibrillators by protecting owners and users from civil liability. Another new Act establishes the Ontario Agency for Health Protection & Promotion, whose mandate is to “protect and promote the health of Ontarians and reduce health inequities” by developing and disseminating best practices in areas such as infectious diseases, the collection of data to inform public health policy and planning, the co-ordination of public health research and education, and the management of emergency or outbreak situations with health implications.

Summary

Our review of the HSIA is not exhaustive. Given the scope of the amendments passed, there may be legislative changes that affect your institution or practice that we have not summarized. We encourage you to direct any questions about the impact of these changes to any member of the health law group at Borden Ladner Gervais LLP.

You can access HSIA at:

http://www.ontla.on.ca/bills/billsfiles/38_Parliament/Session2/b171ra.pdf

You can access Ontario Legislation at:

http://www.e-laws.gov.on.ca