Key Changes to the RHPA as of May 2018: A Primer for Health Law counsel

KEY CHANGES TO THE RHPA  – A PRIMER FOR HEALTH LAW COUNSEL

On May 1, 2018, a number of changes to the Regulated Health Professions Act, 1991 (RHPA) came into effect as part of the implementation of the Protecting Patients Act, 2017, including legislative amendments and the introduction of three new regulations.

This article will summarize these important changes to the RHPA so that health law counsel representing regulated health professionals (“health professionals”) are equipped to advise clients about the new regulatory landscape.

A.            Additional Self-Reporting Requirements

As of May 1, 2018, all health professionals are required to file a written report with their regulatory college (“College”) in respect of the following[1]:

1. Charges and Conditions of Release[2]

All outstanding charges that have been laid against them in respect of an offence, including charges under the Criminal Code and any corresponding conditions of release, including bail conditions and/or other restrictions.

This includes charges laid prior to May 1, 2018, that have not yet been resolved. Charges that were resolved prior to May 1, 2018 do not have to be reported, provided that there was no guilty finding.

In terms of timing, the report must be filed as soon as reasonably practicable after the health professional receives notice of the charge or the conditions of release. In addition, if there is a change to the status of the charge or the conditions of release, a further report must be filed.

       2. Other Professional Memberships[3]

Any memberships that they possess with another regulatory body that governs a profession either inside or outside of Ontario.

       3. Findings of Professional Misconduct or Incompetence by Other Regulatory Bodies[4]

All findings of professional misconduct or incompetence that have been made against them by another regulatory body that governs a profession either inside or outside of Ontario.

As in the case of criminal charges, this report must be filed as soon as reasonably practicable after the health professional receives notice of the finding made against them.

B.            Additional Information to Be Posted on Public Register[5]

As of May 1, 2018, all Colleges are required to post the following additional information on their public register in respect of members of their profession:

1. Criminal and Other Charges

All outstanding charges under the Criminal Code or the Controlled Drugs and Substances Act (CDSA) that have been laid against a member, including the fact of and brief summary of the charge; and the date and place of the charge. This includes charges laid prior to May 1, 2018 that have not yet been resolved.

     2. Findings of Guilt in Criminal and Other Matters

All findings of guilt under the Criminal Code or the CDSA that have been made against a member, including a brief summary of the finding; a brief summary of the sentence; and if the finding is under appeal, a notation of that fact until the appeal is resolved.

Health professionals who have been found guilty of an offence under the Criminal Code or the CDSA should strongly consider taking steps to obtain a record suspension or a pardon, which would result in the removal of the guilty finding from the public register.

      3. Conditions of Release

Any currently existing bail conditions or other conditions of release flowing from a charge under the Criminal Code or the CDSA, in respect of a member.

Conditions of release imposed pending an appeal of a finding of guilt under the Criminal Code or the CDSA will also be posted.

    4. Other Licenses/Registrations

A listing of any licences or registrations to practice another profession in Ontario, or any profession in any other jurisdiction, that may be possessed by a member.

    5. Disciplinary and Other Findings by Another Regulator

All disciplinary, professional misconduct or incompetence findings that have been made against a member by another regulatory body in any jurisdiction. The information to be posted is to include the fact of the finding; the date of the finding; the jurisdiction in which the finding was made; and the existence and status of any appeal.

C.            Criminal Findings of Guilt that Will Result in Mandatory Revocation[6]

As of May 1, 2018, if a health professional is found guilty of certain sexual offences under the Criminal Code[7], they will also be subject to a mandatory revocation of their certificate of registration. Health professionals need to be extremely mindful of this change, especially when negotiating a resolution of criminal charges in respect of one of the enumerated sexual offences. It would seem to go without saying that in most cases, pleading guilty to one of the enumerated sexual offences will no longer be a viable consideration.

D.            Expanded Definition of “Patient” for Sexual Abuse Provisions

The word “patient”, as it relates to the sexual abuse provisions of the RHPA’s Health Professions Procedural Code has been expanded. As a result, a person will remain a patient for one year from the date that the person would otherwise cease to be considered a patient of the health professional.[8] As such, if a health professional and a patient were to engage in a sexual relationship during that one-year period, such conduct would be considered “sexual abuse” and would result in a mandatory revocation of the health professional’s certificate of registration.

In addition, a person will be considered to be a patient if there is a direct interaction between the health professional and the person and any of the following have occurred:[9]

• the health professional charged or received payment from a person in respect of a health care service;
• the health professional contributed to a health record or file for the person;
• the person consented to the health care service recommended by the health professional; or
• the health professional prescribed a drug for which a prescription is required to the person.

However, notwithstanding the existence of any of these interactions, a person is not considered a patient of a health professional if all of the following conditions are satisfied:

• they were in a pre-existing sexual relationship at the time the health services were provided;
• the health services were provided in emergency circumstances or circumstances where the service is minor in nature; and
• the health professional has taken reasonable steps to transfer the care of the person to another health professional or there is no reasonable opportunity to transfer care to another health professional.

Conclusion

The recent changes to the RHPA are significant and health law counsel must ensure that they are apprised of them so that they can properly advise their health professional clients.

About the Author

Lad is certified by the Law Society of Ontario as a Specialist in Health Law and is recognized by Best Lawyers in Canada (Health Care Law). As part of his health law practice, he provides advice and representation to regulated health professionals regarding the full spectrum of matters falling under the governance of their regulatory colleges, including registration, fitness to practice, complaints, investigations, discipline, etc.

He can be reached by telephone at 416.864.3114 or by email at lkucis@grllp.com.

Please note that this article has been prepared for information purposes only and is not intended to be construed as legal advice.

Any article or other information or content expressed or made available in this Section is that of the respective author and not of the OBA.