Tuesday 6 August 1991

Regulated Health Professions Act, 1991, and companion legislation / Loi de 1991 sur les professions de la santé réglementées et les projets de loi qui l'accompagnent

Ministry of Health



Chair: Caplan, Elinor (Oriole L)

Vice-Chair: Cordiano, Joseph (Lawrence L)

Beer, Charles (York North L)

Haeck, Christel (St. Catharines-Brock NDP)

Hope, Randy R. (Chatham-Kent NDP)

Malkowski, Gary (York East NDP)

Martin, Tony (Sault Ste Marie NDP)

McLeod, Lyn (Fort William L)

Owens, Stephen (Scarborough Centre NDP)

Silipo, Tony (Dovercourt NDP)

Wilson, Jim (Simcoe West PC)

Witmer, Elizabeth (Waterloo North PC)


Callahan, Robert V. (Brampton South L) for Mrs McLeod

Cunningham, Dianne E. (London North PC) for Mrs Witmer

Johnson, Paul R. (Prince Edward-Lennox-South Hastings NDP) for Mr Silipo

White, Drummond (Durham Centre NDP) for Mr Malkowski

Clerk: Mellor, Lynn


Drummond, Alison, Research Officer, Legislative Research Office

Gardner, Bob, Research Officer, Legislative Research Office

The committee met at 1008 in committee room 2.


Consideration of Bill 43, the Regulated Health Professions Act, 1991, and its companion legislation, Bills 44-64.

Étude du projet de loi 43, Loi de 1991 sur les professions de la santé réglementées, et les projets de loi, 44 à 64, qui l'accompagnent.

The Chair: Good morning, everyone. I would like to welcome everyone to the standing committee on social development. We are going to be dealing with a package of legislation. The bill numbers are Bills 43 to 64 inclusive. I believe all members of the committee are here. There are a couple of housekeeping items that I would like to mention.

The first is that every committee member has received a package of information. I understand that over the course of the hearings there will be a number of substitutions within the different caucuses. I would ask the whips of each of the caucuses to remind their members to pass the package on to the substituting members, because there will not be additional packages available for every new member of the committee. It is extremely important that the package of information gets passed on, so if all members could ensure that this is available for the person who will be substituting for them, that would be very, very helpful.

This is the beginning of a series of meetings. I want to welcome the Minister of Health here this morning. Today is the day for the Ministry of Health. One of the other housekeeping items is around the availability of scheduled dates. The minister has informed the committee that she will not be available the week of September 16 for clause-by-clause discussion as had originally been anticipated, so we should think about that time commitment.

Hon Ms Lankin: Madam Chair, if I might speak to that point, I know that you have given some contemplation to having Mr Schwartz --

The Chair: He is available on the 16th.

Hon Ms Lankin: On the 16th. I certainly have no objection to the committee proceeding with a date with Mr Schwartz, and then we could pick up in another appropriate week on the clause-by-clause. I will make sure I have people here and available. I just personally will not be able to attend that.

The Chair: One of the housekeeping items for the committee is to determine whether it would like to hear from Mr Schwartz on September 16 even though the minister will be unavailable, as we had originally planned that week for clause-by-clause. I have two heads nodding -- three. Is it the consensus of the committee to invite Mr Schwartz to appear on September 16? Yes? Agreed? Any objections?

We will advise the clerk to invite Mr Alan Schwartz to appear before the committee on September 16 for the day to make a submission and answer questions of committee members. We will then await the direction from the minister regarding timing for clause-by-clause discussions. Is that acceptable?

Hon Ms Lankin: That is fine. I believe there was an alternative week that had been discussed and that is fine with our office.

The Chair: Just a second, I want to confer with the clerk. For the information of the public, as well as those who have an interest in this package of legislation, the clerk has informed me that clause-by-clause will likely be dealt with once the House resumes in the fall, following September 23, on Mondays and Tuesdays through the fall session of the Legislature. I will direct the clerk to establish meeting dates and times in conjunction with the whips of the three caucuses, but that will be the assumption for clause-by-clause on these bills unless I hear any objection or direction from anyone. Agreed?

Mr Beer: Agreed, Madam Chair. Just so I understand, we would probably then meet with the minister beginning the 23rd? The minister made reference to another set of dates for clause-by-clause.

The Chair: That was the set of dates that had been discussed. Unless there is any change and unless otherwise notified, we will assume it will begin the week of the 23rd.

This is, as I say, the first session. Are there any questions or comments that any of the members of the committee would like to make regarding procedures? Certain decisions were taken by the committee, and I would just like to confirm at this time that normal procedures of standing committees plus the decisions taken by the full committee are clearly understood by everyone, and that it is the job of the Chair to see those procedures are enforced. We will begin.


Hon Ms Lankin: Good morning to the members of the committee. I will just take a moment to introduce Linda Bohnen and Alan Burrows from the ministry. They are much better versed on this legislation because they have had many years of history in working on it and will be spending most of the day with you answering some of your questions.

I want to take some time at the beginning, however, to talk about what our intent is with respect to this legislation: what we hope to accomplish by it and some of the draft amendments I will be submitting to you today to let you know where we think we may be going with some of the clauses. As well, I wanted to alert you to some of the areas that I expect you will hear some very strong representations on and that I will ask you particularly to look at, because we are struggling ourselves within the ministry with what sorts of amendments we may be looking at for those areas. I truly hope to be guided by the work of this committee.

I think it is important to note that we have arrived at a point in this legislative process where this legislation, the Regulated Health Professions Act, will get a fresh look. In the sense of the legislative agenda, it is the final look that this legislation will get before we go to third reading.

As a package, it has been on a long road, and sometimes it could be described as a bumpy road. It has been eight years that there has been an attempt to bring forward this package of legislation. We may all be taking part in a very historic moment when third reading happens, following that proclamation. I have to again, as I did during second reading, pay tribute to the Chair of your committee, who as a former Minister of Health spent a great deal of her time and energy shepherding this piece of legislation through for introduction. We are hopeful that this fall session will see it come to fruition.

We believe that over the years, the Health Professions Legislation Review that took place and the recommendations it has made have for the most part been maintained intact in the legislative packages that you will be looking at through the course of your hearings. We believe it still is open to amendment, however, in that over a long period of time a lot of people have had very strong representations to make about this legislation. Many people feel there are ways in which the intentions of the bill can be better achieved, or the underlying policy objectives of this legislation can be better achieved. I know the committee will have its work cut out for it in order to review all of those submissions and to make sense of the package as an entire entity. I think it is important that this balance be given in your approach as you look at it.

There are people who will make submissions either to make known the opinions of professional or interest groups that they represent or to make known their own opinions as concerned consumers. You will have in front of you the task of conducting the public hearings, hearing from these presenters, and then reviewing the legislation clause by clause, taking into consideration all of the submissions you have heard. Finally, you will make your recommendations for changes to the legislation for the Legislature to vote on.

I am anxious to receive those recommendations that you will offer. At the ministry we are still considering proposed amendments and are developing others that we have in mind. I have with me today a number of draft amendments to the Regulated Health Professions Act and the Health Professions Procedural Code and the health professions acts, and I will ask you to consider them. I will distribute them to you later. These are proposed amendments that reflect our current thinking. I consider them to be subject to what is heard here at committee, so these are not being officially proposed as the official government amendments at this point in time. I look for your comments on those.

We thought it important that you be aware of where our thinking is headed, and in particular that members of those interest groups out there, many of the professions themselves, be aware. Some of these amendments are in areas that people have been lobbying for, and if we are thinking of going in that direction, we thought it fair that they have that knowledge before coming before the committee in terms of using their scarce time to focus on the areas where they think perhaps the ministry has not heard their message. So we are hopeful that the proposed draft amendments will be of assistance to you in your work and of assistance to the groups.

There will, however, be professional groups who will continue to have concerns about legal and procedural provisions within the legislation. Others will have concerns about things like scopes of practice and authorized acts. I am sure you will hear from some groups a desire to see the harm or basket clause reinserted into the legislation. I am not proposing that this be done at this point in time. We believe the 13 controlled acts provide ample protection for consumers and we have not been convinced otherwise. However, those concerns will come forward and this is the place for those voices to be heard. That is the purpose for this kind of a public forum. I look forward to your deliberations on that point and others.

I am very pleased to say that the level of interest in making submissions to this committee on this legislation is very high. In most of the cities where the hearings will be conducted, Toronto, London, Ottawa, Thunder Bay and Sault Ste Marie, the response has been very gratifying, and in fact we are booked up completely in some areas. I think that speaks to the process you will be undertaking and to the kind of interest there is in this package of legislation.

That is of course because this is, after all, public interest legislation. It is legislation that gives the public a louder and clearer voice than they have ever had in how the health care system operates. Public members will make up a larger proportion of the councils, sharing those duties with professional members. Their numbers will rise so that they comprise almost one half of the council, up from a quarter or less that existed in the past.


The public will also have greater representation on discipline committee panels. The Health Professions Regulatory Advisory Council will be made up of people who are not health professionals. Its role will be to offer the minister advice on proposals from the public, on changes to law governing health professions, on which other professions should be regulated and on quality assurance programs.

This is also legislation that offers the public more protection. In talking about public interest and public protection, it is one of the reasons that we hope you as a committee will be able to hear from health care consumers and hear the public's reaction to this. That is a daunting task, because as a group they are not as well organized as many other voices within our society. We hope there will be an opportunity for you to hear from health care consumers and that you will take their concerns and their opinions into account in your deliberations.

As a piece of legislation designed to protect, within the legislation you will see that there is protection in the form of the 13 categories of controlled acts contained in the umbrella act. Only certain health care providers will be able to perform these potentially hazardous acts and any others performing the controlled acts could be fined. There is protection in the form of quality assurance programs that the various colleges will be asked to develop and undertake. Each college is to have these in place three years after the legislation is passed.

I think you will hear, as I did in meeting recently with representatives from InterHealth, that there are some concerns with respect to the development of quality assurance programs. It is not that there is any disagreement that it is an excellent idea and that it is an appropriate role for the colleges, but there is some concern that there be some consistency across colleges in terms of how these are developed and that there be some assistance from the ministry with respect to this. It is a message that I heard from InterHealth and will be taking a look at.

Each of the colleges will design its quality assurance program to ensure that its members maintain their skills and continue to learn what they need to know to provide safe care. Equally important with that, the program will address the provisions of effective and appropriate care. I think we have seen, as quality assurance becomes a major focus within the health care sector, the importance of that aspect of quality assurance programs.

The RHPA will help create an environment of better understanding and trust between health care professionals and the public. There will be trusts built not only as a result of health professions showing their desire to ensure quality care with things like the quality assurance programs that I just made mention of, but as a result as well of the professions' willingness to enter into a new and more open partnership with the public. The new partnership I am referring to will be nurtured due to increased participation of the public on college councils, and trust will also come as consumers feel more confident in the complaints process, which will become more open and accessible.

Consumers will be assured when they are made aware that they have the right to complain. They will feel a greater sense of confidence as they see their rights honoured. This will come as they begin to see their complaints more often translated into investigations and as they see investigations resulting in action.

This legislation also brings women closer to achieving equality in the health care system, in a system that has been dominated by men. All of the seven new professions that are being regulated are predominantly female health care professions. They are audiologists, dietitians, medical laboratory technologists, midwives, occupational therapists, respiratory therapists and speech language pathologists. As well, dental hygienists are getting their own college.

One of the dramatic changes represented by this legislation is the choice women will have in how they want childbirth conducted. This legislation rights a wrong that was committed in Ontario over 100 years ago. It was back in 1865, to be exact, that the Ontario Legislature reversed a policy concerning childbirth, taking away the exemption that midwives had in the Medicine Act. Until 1865, midwives were able to practise midwifery without a licence to practise medicine. The inclusion of midwives in this legislation represents the effort of hundreds of individual women and a smaller number of practising midwives who, through public education and lobbying and education of other health professionals, demonstrated the need for and the consumer demand for midwives.

The RHPA rectifies the lack of input that women -- in fact the entire public -- have had in the system governing health care. We are hopeful this legislation will also help to simplify the process of making changes to our health care system. It is my hope that, with RHPA, future policy-making will be more flexible and more responsive to public concern.

As I indicated, I am submitting to the committee today a number of draft amendments to the RHPA and the procedural code and the health professions acts. The changes I am proposing incorporate suggestions of the professions and their counsel. I am confident that we at the ministry, along with the legislative counsel who have responsibility for the language of the bills, have been able to find better language for many of the clauses of the legislation where there had been a lack of clarity. In some of those situations we are talking about minor housekeeping amendments to language. For example, there is an amendment that would make it clearer than it was under the previous wording that any controlled act may be delegated. This is coupled with a regulation that would authorize every college to make regulations governing the delegation and restricting which acts may be delegated and under what circumstances.

We have also been able to rectify several omissions where wording in sections was not fully thought out. For example, there is also an amendment that would permit a discipline panel to exclude the public from part or all of a disciplinary hearing. However, a complainant and his or her representative could remain present at the discretion of the panel. I do not believe that these amendments will be perceived to be contentious.

Proposals involving the increased public membership on councils to just under half that would set the exact numbers of professional and public members are being discussed with some of the professions, and those are not available in the package I will be submitting to you today. They will be ready before the clause-by-clause process, however, and again in those situations we are working closely with the professional groups in trying to arrive at a consensus and agreement about that structure before we table those amendments. I hope when you see those they will be ones that will reflect the spirit of the government's desire to have increased public participation but will also come with the support of those professional bodies and will not be a contentious issue for the committee.

There are a number of amendments to the scopes of practice and authorized acts in several of the health professions acts. Those being released today concern what I believe will be perceived as non-contentious matters. For example, one of the amendments is to the Medical Laboratory Technology Act. It would authorize technologists to draw blood for testing. That is pretty straightforward. It was missed in the scope of practice and is something that the profession has made us aware of, and we are proposing in the draft set that it be rectified. Another would authorize midwives to draw blood from newborns, to catheterize women and to prescribe from a limited list of medications.

There are amendments we are considering that I think will be very helpful to hear the committee's concerns and thoughts and recommendations on from your review of the legislation. For example, unregulated practitioners still have concerns about a diagnosis controlled act, as do some of the regulated professions, to which this act has not been authorized. This is a very challenging issue. The Chair smiles, and I know that she has struggled with this for some period of time in her time in the portfolio as Minister of Health, and the ministry continues to struggle with it, as do members of the various professions and the unregulated practitioners, trying to find a solution to that language that will meet people's concerns. Clearly I am looking to you, to this committee, for help with the task of coming up with a diagnosis controlled act that, bottom line, provides adequate public protection without making it impossible for practitioners to communicate as fully as is desirable with patients.

I know there are also concerns about the wording of the provisions restricting the use of titles to regulated professionals. I have heard from some of the professional groups about this, and I expect you will. It is an area that we are looking at how we could amend to satisfy those needs, where again, meeting the challenge of a bottom line, which is to help the public get sufficient and accurate information about the practitioners, both regulated and unregulated, whom they seek to see.


In closing, I would like to tell the committee that I consider the RHPA to be living legislation, both in terms of the work you have ahead of you and, once passed and proclaimed, what we will continue to see through the process of the health professions advisory council reviewing the act or parts of it continuously. It is also our intention to have a full review of the legislation in five years' time.

For my part, I will be open to submissions made here at the standing committee, and I am also anxious to receive any recommendations the committee will offer. This legislation has been through eight years of development with a lot of time and effort on the part of members of all three parties and many ministers of Health, and I think that we are all in a truly non-partisan sense committed to seeing the best piece of legislation developed here for the protection of the public. I am very open to the kinds of suggestions that I know the committee will come forward with to try to improve the legislation. The bottom line is to try to balance all of the concerns you will hear with the main thrust of the legislation, which is to provide that kind of protection to the public that all of us believe is important.

Last, I just want to inform the committee, with apologies, that I will not be able to attend all of the hearings you will be holding to hear the submissions at first hand, and it is with much regret, but as I hope many of you will understand, being in this new portfolio for only three months I am still filling many of my days with briefing sessions, getting up to speed on the ministry in many other program areas. I hope to try to balance that ongoing schedule with some attendance here during your hearings as well.

I also hope that in a timely fashion I may have a parliamentary assistant appointed who will be of assistance to me in this as well. In the meantime, there will be members of the ministry staff and of my own personal staff who will be attending every day in order to keep me briefed and informed of what is going on. I wish you well in your deliberations, and I thank you for your time this morning.

As I indicated, Linda Bohnen and Alan Burrows are here from the ministry and will be able to spend much of the time today with you answering your specific questions and leading you through a background explanation of the history of this and where we have arrived at with respect to some of the sections and why we have arrived at that place in the controversial discussions that have gone on.

The Chair: Thank you very much for the opening statement. Are there any questions of the minister at this point?

Mr Beer: I think we are all a little overwhelmed at the paper that is flowing around all of the different acts. But I wonder if we might take advantage of your presence this morning to look at some of the principles that we should be guided by as we look at this legislation, because it seems to me that it becomes critical. You mentioned earlier the whole notion of balance, and I think certainly in all of the work Mr Schwartz has done and in the discussions we as individuals have had with the different groups, both in the last month or so and over the last number of years, we recognize that we are trying to do a number of things here.

I would like to focus a little bit on principles and then ask you for some of your thoughts on a couple of specific points. You mentioned the question of the public interest and also the question of public protection. What kind of conflicts do you see that are inherent there as we look at this legislation, and is it the view of the government that when in doubt we should always try to go in terms of the greater public interest? How do we view that balance, because clearly a number of the regulated professions will express and indeed have expressed concerns from the perspective, as they see it, of public protection. But if you were looking at the principles, what are the ones you think we should be focusing on in terms of how we look at this?

Hon Ms Lankin: I think there are a number of parts to the answer that I would like to touch on.

First of all, with respect to the fact that we are dealing with health professions which are self-regulating, that is an important part of the balance to remember. At the same time, we want to ensure that the public interest is held high, both with respect to the purpose of the legislation and also with respect to the ongoing self-regulation of those professions.

Therefore, because of the enhanced role the public will play in the councils of the colleges, I think the education of the public members is a very important piece of this and one in which you may hear some concerns from the health professions themselves.

Concerns have been raised about what it means to be self-regulating and about the balance needed between outside consumer public participation on those councils and the number of members from the professions themselves. Those concerns are where the issue of the public interests and the balance come to the forefront. We are proposing an increase, as you know, in the number of members of the public that participate there.

I think that is important. I think some of the colleges will have some very difficult issues to deal with. For example, the College of Physicians and Surgeons will have to deal with the task force on sexual abuse and some of the recommendations that come forward there. There needs to be that kind of a balanced discussion that takes place within the college itself. I think the role of the public in those kinds of discussions on the council will be very valuable.

The other thing I would say is that much of what I expect you will hear with respect to issues around scope of practice -- and I think you will hear a lot about that -- and around some of the controlled acts has a lot to do with the relationship between professions. It is important for you to look at that from a point of view of whether it truly has a major impact on the public interest and on protection of the public.

I think that in the discussions for years during the review, many of us individually have met with all sorts of representatives of groups who can effectively make the case for some nuance, some change in the scope of practice as it has been proposed through the review and now through the legislation.

My thoughts or my experience I guess to date has been that when you start to look at the changes in some areas, sometimes there is a counter point of view that you will hear from other professional groups that it would affect. Many times, the consumer is not front and centre in that discussion. I think the committee needs to look at that.

There is a process for ongoing review through the advisory council and for a process for ongoing changes to the regulations and to the legislation.

I truly believe that after so many years of having a review of these issues and of legislative development, we need a period of time of experience with the legislation in order to be able to judge whether the review itself got all the individual scopes of practices exactly right.

Again, I think there is a question of balance in there, and if you are to look at moving parts and pieces of scopes of practice it would be, I would argue, most important if that were done with the public interest in mind as the reason and rationale as opposed to some of the competing interests between professional groups until we have had a chance to see it in practice and play out.

Mr Beer: Just one thing, because it comes up in a lot of the material as well: When you refer to council and college -- because I want to be clear -- by council you are always referring to the advisory council --

Hon Ms Lankin: No.

Mr Beer: I see heads nodding, so can you just clarify? When you are talking about council, that can mean either the advisory council or what we have called in the past --

Hon Ms Lankin: I will ask Linda Bohnen to help me out with the technicalities of this, but the advisory council in and of itself is a separate body and within the colleges when we talk about appointments to the council of colleges, it is like the executive ruling group of a college.

Ms Bohnen: That is correct. The council is like the board of directors of a college. We try to remember to say advisory council when we mean the advisory council.

Mr Beer: That comes up in a number of places and I know when we get into some more of the detail we want to be clear to what body you are referring.

If I could go on from that, it seems as though if we try to identify the overarching issues -- and you have referred in some ways to them in your introductory remarks -- the question of diagnosis and assessment, and how we work through that, the question of the harm clause, the other question that has come up is that of ministers' powers.


You or the government -- it was the minister just prior to you -- said there was not a need for a harm clause. I guess a year ago the previous government had said, "We will have the committee look at drafting a harm clause." Could you share with us your views for in the end recommending that there simply was no need for one, because again that is one that has come up from a number of groups? I am sure they are going to be asking us, in some cases, to continue to leave it out or to put something in. What was your reading in terms of finally saying there should not be one?

Hon Ms Lankin: As you are aware, when we tabled the legislation for first reading, the previous Minister of Health announced that we were in fact going to be dropping the concept of the harm clause or the basket clause. In all the deliberations around the balance between that and the controlled acts, and diagnosis as a controlled act in particular, it appeared to us that the actual 13 controlled acts are where the public would receive its protection from hazardous acts on behalf of professionals and on behalf of unregulated individuals being prohibited from performing those 13 controlled acts. It seemed to us as we looked at it that the addition of the harm clause or the basket clause -- no matter which way you attempted to word it -- really was ancillary to those 13 controlled acts and that they provided the basic protection.

When we go through the presentation this morning, ministry staff can give you a bit more detail in terms of some of the wording that was looked at and why in discussions with many of the groups out there it was felt that the controlled acts sufficiently dealt with that issue.

Mr Beer: As we go through this morning, are we going then to be dealing specifically with some of these? If so, I can hold back on my questions.

Hon Ms Lankin: Some of them certainly will be addressed, I think as I did in the presentation. The issue of diagnosis, certainly the issue of title protection, those sorts of things that are controversial, we know you will be hearing submissions on. We want to provide you with information to be able to assess those, as opposed to diagnose those presentations and make judgements on the information.

Mr Beer: You are going to be providing further information. I just do not want to take up the committee's time if we are in fact going to be going into each of these in a more specific way. I know other members may have questions of a broader nature of the minister. If that is the case, I can hold and we can talk more specifically about the harm clause diagnosis and ministers' powers.

Hon Ms Lankin: In the presentation, we have not actually planned on touching on the issue of ministers' powers, but we can do now. I will ask Linda to do that.

Mr Beer: What I was particularly interested in there again is just the rationale in terms of the change and what problems you anticipate or what questions have been raised around the ministers' powers if this act were to go forward as it is.

Hon Ms Lankin: We will make sure that we do that.

Mr Callahan: I just want to inquire, as a result of these acts, will any of the specific groups be retired or put out to pasture? I notice that in Bill 45, it says in subsection 3(2) "No person shall be added to the class of members called podiatrists after the 31st day of July, 1993." Is that a limitation or is it simply saying that from that point on you will be chiropodists?

Ms Bohnen: From that point on no one would be registered and authorized to perform the additional controlled act and scope of practice of podiatry. But certainly from that point on individuals may be registered as chiropodists.

Mr Callahan: What you are doing in effect is creating a specialized group that never again will be given that authority of podiatrist by shutting it off on July 31, 1993.

Hon Ms Lankin: It is a grandfathering of a group of individuals in the system who had historically both felt empowered and able to perform certain duties, in some cases through the training and also through the nature of practice. The review itself, as it went through and looked at the balancing of this and the training that was required to perform those duties, felt that chiropody was the appropriate place for that scope of practice to rest. I think the review and the development of the legislation under the previous minister really attempted to ensure that people who were in the system and had the skill and background of years of practice in performing these duties were protected by being grandfathered. That was the intent there.

Mr Callahan: So do I understand it correctly that podiatrists perform a much broader scheme of practice than chiropodists do or will do under this legislation?

Ms Bohnen: Typically, what a podiatrist does that a chiropodist does not do is surgery on the bone of the toe and the forefoot, the front part of the foot. Chiropodists do not do that. The decision to essentially grandfather but cap podiatrists who do perform this additional surgical function was negotiated by the review. It was consistent, I believe, with Ministry of Health policy during the late 1970s and 1980s that foot care in Ontario should be provided by chiropodists who do not do surgery on the bones of the feet.

Mr Callahan: I do not want to press this, but does that mean that the people who become chiropodists after this will not have the authority or the training to perform what podiatrists did pre-1993?

Ms Bohnen: Chiropodists do not now perform bone surgery; podiatrists do it. Chiropodists do not do it today.

Mr Callahan: So what happens if you are capping them or grandfathering them? You are in fact creating an exclusive class and you will have no more podiatrists, right? If that is the case then it is kind of like shutting off the licence plates for a taxi company. You make them very much more valuable. It is almost a revisiting of the QC issue, if you want, but does that not establish a special class or profession that perhaps is not desirable? It is going to force that type of work to be done by medical practitioners, which is going to be far more expensive for the health plan of this province?

Hon Ms Lankin: I think you will find through the course of the review that many difficult issues like this were taken on, a balancing of these sorts of competing interests that will come forward. That is something that, as we go through the presentation and as the committee hears from groups, I will ask you to look at: Did the review and did all of the processes that led up to that get these answers right?

A lot of time and energy has been spent trying to answer some of these very difficult questions around scope of practice and around opening up. In fact, we believe the regulation of some of these further groups opens up the provision of health care services to a broader range of professional groups as opposed to limiting it. The committee will have to look at whether in the case you actually raised that is the case or not.

Mr Callahan: I am only subbing on this committee and I have not had a chance to look at the other acts, but do any of the other acts that are before us grandfather a previous profession and its scope? On the other side of the coin, I think you have already told us there are acts that enlarge the scope of various groups regulated by this legislation. If that is the case, I would like to know. I am not sure about the other members of the committee, but I would like to know, as we receive our briefing from the ministry, if they could list those that limit or grandfather and those that expand so we can take specific note of that in terms of addressing the issue.


Hon Ms Lankin: Yes, that is part of the briefing that is scheduled for today, this afternoon in particular.

Just to go back to the previous issue, I wanted to make note that the chair of the board of podiatrists and chiropodists apparently can speak very well to this particular issue. Her name is?

Ms Bohnen: Dr Diana Schatz.

Hon Ms Lankin: If she is not scheduled to come before the committee, she may be someone the committee may wish to hear from if that issue becomes one you wish to pursue.

Mr J. Wilson: Thank you for your opening statement. I know we are going to get into a lot of specifics during the briefing, and I could continue on Mr Beer's first line of questioning on the diagnosis clause. I will do that for a minute. I was going to skip that, but I will do it. I did not quite understand and I am trying to get a feel for it, because I had a lot of groups, as all members have, that have met with us in the past months and weeks. It has been suggested by a number of groups that perhaps the clause should have been scrapped altogether. Not being an expert in this field at all, can you once again try and give us a feel for the direction you are going with that?

Hon Ms Lankin: I will very briefly, and that will be part of the detailed briefing you will receive today. In my comments I addressed what I as a legislator, the same as all of you as legislators, have heard from members of various groups out there. Most particularly the unregulated practitioners have brought forward this concern, but not exclusively the unregulated practitioners.

There is certainly a concern that whether diagnosis is a controlled act, by virtue of the definition of diagnosis, it will limit groups that are not regulated and authorized to perform this controlled act of diagnosis from doing what many of us would agree is very good and important work. That would be people like clergy, social workers and other groups that work with people in a human situation of looking at what problems people face and making an assessment of those problems, communicating to people about that assessment and helping them determine a course of action they may follow.

The line between what is an assessment and what is a diagnosis and what is communicating assessment and communicating diagnosis has become very controversial and is one where we have not at this point in time been able to develop language that meets everybody's concerns. On the counter side of that, if you were to eliminate it altogether, you will find members of those regulated professions who are authorized to perform that controlled act feeling that there would be great danger to the public and to public safety.

It is very controversial and difficult and we truly do look for assistance from the committee. You will hear more detail on that in the detailed briefing.

Mr J. Wilson: We were sent amendments on July 31. In those, I did not see any major changes to that clause. Do you have further amendments today on that?

Hon Ms Lankin: No, what I will be tabling with you today is what I sent out for information in advance, the draft proposed amendments that reflect our thinking, and as I indicated in my opening remarks, that does not include amendments on some of the most controversial, like diagnosis and title protection. We do look to the committee for assistance after you have heard from members of various professional groups, but also members of the public, because by and large they have been unheard thus far in the legislative development process.

Mr J. Wilson: Thank you, that is helpful. I guess my final question or comment is that it seemed to me that in deliberations over this legislation with groups there was an awful lot of confusion. I know this legislation and the development of this legislation goes back what, nine, 10 years or more? I was wondering if at some point you will have, or perhaps you have already, a communications plan. When the committee's deliberations are done and this is enacted as the law, I do not think it is sufficient in this case to just gazette the thing.

I was wondering if the ministry has given any thought on how we are going to get the message out to people exactly what the rules are, because during the development of this there certainly was an enormous amount of confusion, and as amendments came forward they were not, I did not feel, very well communicated in public. That is a problem, I understand, not just for the government, but mainly in this case because it is such complicated legislation and deals with so many acts. Do you have any thoughts on that? It has probably been an area of frustration for you.

Hon Ms Lankin: Preliminary thoughts at this point in time -- and again, if you have thoughts you would like to put forward, I am sure that would be helpful to us. For example, the ministry has been working on how groups that have no professional college get to the point of having a professional college, the kind of education program we will need to develop and assist with in regard to members of councils of colleges. That will include dealing with the role of being on a council of a college for those professionals as well as for members of the public. An ongoing public education for public members I think is really important.

Additionally, I have just been advised that there is work going on in terms of developing a consumer brochure that will explain in some ways. There should have been copies of that available for you today that will help show you what that would look like.

There will be much more than that planned and pulled together, but at this point -- a lot of that work has gone on in the ministry. You will appreciate that this legislation was anticipated to be passed under the previous government, so there is much work that has been done. We will certainly make use of that and any other recommendations you may have.

Mr Hope: I just have a couple of concerns. Thanks, first, Madam Minister, for coming this morning. You talked about amendments. The amendments are only ideas you have and you are looking for public input, through what we hear, comparing the amendments you are looking at plus what we hear in drawing up some type of long-term legislation. So what you are really doing is just giving us a sight of some of the concerns that you have been hearing from the general public and from those professionals to try to straighten up the legislation. Is that what you are trying to get across?

Hon Ms Lankin: Yes. I will be circulating officially those draft proposed amendments today. I will also circulate copies of my opening remarks to you. Most of you have seen the draft amendments, and they are very detailed and technical, and I want to give some reference from my remarks about what is there and what is not there.

I think it is important to keep in mind, with what we are tabling as draft amendments, three things: Some of those are what you could describe as housekeeping amendments, ie, clarification of wording and/or correction of wording that occurred in the legislative drafting before; some of them deal with issues around scope of practice where there were clear oversights and they are non-contentious in terms of bringing those forward, and some of them are procedural. None of them in any way deal with the very meaty contentious issues this committee will have to deal with in regard to the kinds of things like diagnoses and title protection that we have been talking about here.

The reason for circulating them in advance is that, for some groups, those, although not controversial, were very important aspects of change that they felt it necessary to see. We wanted to give people clear indication that on those they had been heard and to let people have an indication of where we were headed. We thought that was important both for the committee and for the groups coming forward, the presenters, so as not to waste a lot of time if that resolved problems.

But overall I guess what I want to stress is that I truly do want to hear from the people who will be coming forward and making presentations and from the committee's deliberations of those presentations. We are open to further amendments.

Mr Hope: There are a couple of other comments I would like to make. I have had the distinct pleasure of meeting a lot of people all over this province, especially from rural Ontario, where I come from. They are looking at this legislation as being detrimental to the hospital costs. It will increase the costs of the hospitals. Especially with the nurses, one of their emphases is that rural Ontario hospitals may be experiencing more cost, as they see this legislation.

The other thing they were concerned about was the transition period for this legislation into reality. They were concerned about the transition part of it. Is there a mechanism in place for the transition, and has the legislation given sight to those of rural Ontario that there is a certain need? We do not live in large urban centres like Toronto, Windsor or London. We live in smaller, rural settings in which we do not have the expertise. We have a hard enough time getting doctors to come to our area to live because of a different standard of living.

These are some of the concerns they keep bringing across to me and I just want to air those concerns. I do not need an answer to them, but I think it is important that you hear some of the concerns they are telling me from rural Ontario: the additional costs of the hospital, getting doctors and providing less service in rural Ontario, which means we will have to travel more again to get services in either London or Windsor. I think they are important issues. We have to listen. Is the legislation going to really hurt rural Ontario as we see it coming through?


Hon Ms Lankin: I will certainly be interested to hear through the public hearings if that kind of submission comes forward and if the committee hears that there is a concern that needs to be addressed there. I would think that there is in fact an alternative way of looking at it, which is to say that as more health professions are regulated and brought on stream with a self-governing structure and a clear scope of practice in which people can access health care from different groups of providers as opposed to only the medical profession itself, it opens up the health care system and it makes it more accessible for all Ontarians, rural and urban Ontarians. Let me say I do hope that if that is an issue and a concern, the committee will hear that and your recommendations will reflect that.

With respect to the transitional issue, I spoke to that. We are certainly aware of the need to have transitional plans. Again, in the meeting with InterHealth last week this issue was raised. Groups will need help with respect to setting up colleges and getting those colleges going and we are looking at the establishment of some transitional teams working with those professions so that we can make it as smooth as possible. Before we have confirmation, we want to make sure there is a system in place in order for people to access a system that is working and viable at that date.

Mrs Cunningham: Madam Minister, thank you for your presentation this morning. I was quickly enlightened to hear you say that draft amendments -- and you emphasized the word "draft" -- are just that. That, for me, will be a very special experience, because I have sat on this committee before, more recently through Bill 17, where there were very strong recommendations from the public and, in my view, we did not make the changes that were necessary. I think we will live to regret it.

I think you are very sincere in saying that you are looking for some solutions to this problem around the diagnosis issue, and I commend you for saying you are listening, because I think it is a very serious problem for us. I think all of us would not be here if we did not support the system that was so important to our health care in this province, and that is a system of laymen and volunteers who provide a tremendous support. We do not want them, to be subject to litigation and fines in their work, and I think it is our responsibility to find a way around that.

It is almost like "Smoking is dangerous to your health" -- you know, the sign you put up in front of your door -- and people come in and do it anyway. If people clearly understand that a child care worker is there to make recommendations, to make referrals -- general practitioners do the same thing, and we have to find a way to protect people who are there to help others. I do not think we have done it so far. I just wanted to put that on the record and commend you for your sincerity in listening.

The question I have of you is a time-frame question. There seem to be an awful lot of individuals. I am curious to see what they are going to tell us. There are more individuals than professional groups and specialties coming before the committee. I am wondering, from your point of view, how you will treat their special presentations, because my instinct is that you are going to hear a lot of things about health care from them and from their own experiences. Would you have any advice for the committee as to what we should be doing with that if it is either directly or maybe not directly related to this legislation? I am wondering what you plan to do with that.

Hon Ms Lankin: That is a very good question. I think there probably will be a lot of instructive information that will come forward. I have not actually thought about that, and I think what I will do is take your question away with me under advisement in terms of how we could best make use of a lot of this information. Truly, I believe that I and other new legislators who form this committee may hear things that we are hearing for the first time. For others, it may be a chance to hear it with a different focus of intensity, coming from individuals and health care consumers. There should be good use made of that. I agree with that sentiment and I will have to think through what that means and how we can do that.

Mrs Cunningham: Just from my point of view, in my office in London I have heard a lot about title protection and certainly the powers of the minister. So I am expecting we will get a little bit of that. It has also been difficult for me to sort of plan that day in London. I do not know if the clerk has had very many calls, but we have had a tremendous response in our own office. I have already looked at the list and know that four or five of the ones I would want you to hear from are not there. Either they have not called, or it is full or something. I certainly know I have had a tremendous response.

There is a hope, I think, that when people come before this committee and take the time to make a presentation, somebody is really going to listen to them. I was not particularly pleased with the last bill -- even with this government, I must say. I do hope we are going to be looking for solutions. I might warn you that it might take a little more time than we have given it.

There has been so much leading up to it. The former minister knows about that. She herself, I think, hoped that we would have come to some conclusions before now. All of us are in it together to make some legislation that is going to be long-lasting, but I it may take a bit longer. I wanted to make that public, given the kinds of things I have heard from patients and health care consumers in London.

Hon Ms Lankin: I am heartened to hear that there is that kind of expected participation from patients and health care consumers. It is one of the things we had hoped would happen during this process, because we feel there has not been a vehicle before these public hearings to have easy input from those groups. As I indicated, of course, they are not always the most well organized group, and it is hard to have ongoing, effective representation. So I am heartened to hear that.

With respect to being open to amendments: There is absolutely no unwillingness to try and deal with some of the very real issues. However, as I indicated to you before, when you start to look at making moves in certain areas, the balance throughout the whole package of legislation that was arrived at -- as you are all well aware from the very long process of the legislative review -- starts to create problems in other areas that you need to address.

So I ask the committee, when you look at proposing amendments, to ensure in your own minds that they do not create an effect that will leave us in a problematic situation, trying to deal with issues that compete with each other and trying to strike a balance, even though you are under the guidance of the Chair, who is probably the most experienced in this area.

The Chair: Just for clarification for the committee, Mrs Cunningham raised the issue of representations and time slots. The committee dealt with the amount of time available for meetings. For your information, the clerk has had an overwhelming response. The time slots are pretty much full. In London, in order to accommodate as many people as possible, the hearing hours have been set earlier in the morning and extended through the lunch-hour.

The committee, as I said, discussed this, and the subcommittee spent quite a bit of time on it. The view was that any groups that could not be heard would be placed on a waiting list, and that if there was time or cancellation, they would be slotted in. They would also be encouraged at any point through the process to submit their concerns in writing if there was insufficient time to hear everyone.

The other thing the committee should note is that there have been several requests for changes in time slots. The clerk has undertaken, wherever possible, to accommodate them, but it is proving difficult because it would mean changing with somebody else and moving that around.

I just wanted to make that point to the member who raised the issue of participation at these hearings. I would commend the clerk for the work that she has done to date in attempting to accommodate as many people as possible.

Hon Ms Lankin: Madam Chair, if I may, I will leave at this point.

The Chair: There is one further question. Mr Owens, and I believe Mr Beer, had one last question for the minister. We will try to have you out of here as quickly as possible.

Hon Ms Lankin: Okay.

Mr Owens: It is more of a quick comment and perhaps a bit redundant, but the remarks that Mr Hope raised with respect to the rural areas are, I think, quite valid. My experience in the health care area is that what happens in Toronto after 5 o'clock is not necessarily what happens in Sault Ste Marie or some of the other smaller communities that we may hear from.

I have a concern that the legislation may be a bit Toronto-centric in its focus. I certainly hope you will entertain amendments to widen areas around the scopes of practice and the diagnosis clause that will help widen the ability of practitioners in smaller communities to continue, as they have been doing until now.

Mr Beer: Before the minister goes, I just want to be clear on one point. You have said you are interested in the recommendations we may come up with, and I respect what you have said. But I think it is important for us to be clear on the government's intentions. I do not want to put words in your mouth, but let me phrase it this way.

It is still the government's policy that, unless there is some argument which you have not yet heard, there should not be a harm clause; and it is still the government's policy, unless you hear arguments to convince you otherwise, that the way in which the diagnosis clause is expressed in the legislation represents the closest balance that, in the government's view, you can find.

I say that because I think there is a difference here between saying, "Look, this is what we believe is the appropriate way to go," and you yourself saying to us, "Look, as a minister who came in later, I have some personal concerns about the harm clause and I would like to hear what you have to say." I just want to be clear, as we go about our work, on the government's policy. Have I expressed it correctly?

Hon Ms Lankin: That is a fair question. I would say you have expressed it in part correctly. Let me try to build on that so that the committee does have a clear understanding of where we are coming from at this point.

With respect to the harm clause itself, at this time we believe that the 13 controlled acts do cover the necessary elements of public protection that we want to achieve with the legislation. We do know, however, that it is an area of interest and concern to a number of people and we will expect that you will hear representation.

To this date I have not heard representations that have convinced me that we require a harm or a basket clause to be reinserted in the legislation. You may, and I am open to hearing that, but at this point it is not our intention to reinclude a harm clause.

With respect to diagnosis as a controlled act, I think we are struggling to find the appropriate amendment to balance the concerns of those professions that believe strongly in the need for diagnosis as a controlled act and those groups that feel it will inhibit their ability to perform good human service work. I think there is a need either for greater understanding and clarity of what is there or for an amendment which can provide that sense of comfort to both groups.

We have not yet been able to come up with an amendment that meets those concerns on both sides. We have worked with various groups in terms of possible wording. There have been a lot of amendments proposed and there have been some problems and nuances of problems with all of them. But we are still looking at that. I think it is an area in which, if we can receive some assistance, we would be open to amendments.

Mr Beer: Briefly and finally, the decision to take out the harm clause, was that a ministerial decision or one taken by cabinet?

Hon Ms Lankin: I think that is not an appropriate question, but I do not have enough experience to know whether I am on the borderline. Any legislation put forward is the government's legislation. That is the approach I would take.

The Chair: Minister, will you be available later today to answer further questions following the ministry's briefing?

Hon Ms Lankin: I can attempt to be available, if that is necessary. I can be reached through my office and I can attempt to reschedule other events.

The committee recessed at 1116.


The Chair: We have a presentation from the ministry. Ms Bohnen and Mr Burrows, proceed please.

Mr Burrows: It is our pleasure to be here today to make a presentation on behalf of the Ministry of Health. On a personal note, I would like to say that as a bureaucrat who has been involved in this process for three years now and as a health professional myself, it is a double pleasure.

I should explain just briefly what our branch does. The professional relations branch is essentially responsible for liaison with the health professions. Its primary task right now is providing bureaucratic support to this legislative process. Working with us is Linda Bohnen, who is counsel. We have the distinct pleasure of having in Linda not only an excellent legal mind but a repository of knowledge about the review, since Linda also served with the Health Professions Legislation Review before coming to work on contract with the ministry on this project.

What we would like to do today is to take you on somewhat of a history lesson. I would like to talk about the Health Professions Legislation Review. Since six years were spent on this, we felt it worth spending some time, because many of the issues that will come to the committee are issues that really have been in discussion between the review team, the ministry, consumer and provider groups for many years.

After that, Linda is going to talk about the outline of the regulatory model that is contained in the legislation. She will also touch upon how a balance has been struck with respect to each profession's particular interests. Then we would like to talk about specific issues, such as the diagnosis and harm clause. At the end of that time there will be plenty of time, we hope, for questions and answers. In the little break we just had there were obviously a few hot topics on people's minds, so we will be prepared to answer any questions you might have as best we can.

You should each have a copy of a binder. The title page under tab A reads, Briefing -- Standing Committee on Social Development. We will be going through this in relatively the same order it is presented, so if you want to follow along, I will try and remember as we go along to name each tab that is the relevant document to what we are speaking about.

Before beginning, however, I think it is worth spending just a minute or two on the context, because the context under which the Health Professions Legislation Review took place, from 1982 until the end of 1988, really has not changed. We currently have a system which has a fragmented regulatory framework for the regulation of self-governing health professionals. The legislation is largely outmoded; it dates back to 1925. There are no quality assurance programs inherent, with one minor exception, in the existing legislation. There is a lack of protection for individual patients and individual registrants of the various professions and structurally there are problems. For example, one of the reasons the Health Disciplines Act has not been amended is because it was a very difficult thing to do with all of the profession-specific material in the body of one statute. It meant that to open up that statute, legislators would have been faced with the problem of trying to resolve competing interests at the time. That structure, of course, remains today.

Also, there was a need to incorporate new professions. Things change. There are new technologies, some of which are potentially harmful. Professions were bringing forward their own suggestions for regulation. There was a lack of a meaningful process to deal with all of these issues.

We have heard about the powers of the Minister of Health. There is a public expectation of government that when something goes wrong, when a patient is abused or misused, somehow the government can in some way influence that, particularly where there is a general trend affecting society. The bottom line is the need to protect the public from harm.

That context, which existed at the time of establishing the review, really still exists, because the legislation has not been updated or changed or given a new framework or new public involvement. That leads us to why we are all here today.

With that kind of contextual statement, I will turn to tab B, which is the mandate of the Health Professions Legislation Review.

In November 1982, the then Minister of Health, Larry Grossman, announced the creation of the Health Professions Legislation Review with a particular mandate to make recommendations to the Minister of Health with respect to which health professions should be regulated, to update and reform the Health Disciplines Act, to devise a new structure for all legislation governing the health professions and to settle outstanding issues involving several professions. Colloquially, those things are called turf disputes.

I mentioned the various pressures that were on for change. They are listed in this. I will not repeat them. Suffice it to say that those pressures still exist today.

Turning to tab C, this highlights the stages of the consultative process undertaken by the review team. The review team was headed by Alan Schwartz, a Toronto lawyer. It consisted of Mr Schwartz, a very small support team and a consulting firm. The technique that was used was a series of questions, going out and working with the groups involved, those professions and consumer interest groups who were involved in a review.

You will see the first page in tab C lists 20 communications from the review. I will not go through them individually, but they started with inviting participants, working through such things as who should and should not be regulated and, towards the end, dealing with actual legal and procedural proposals and the scope of practice and title protection issues, those things of specific interest to individual professions.

If you look at the next section under this tab, it lists the participants and others in contact with the review. Some 300 groups and individuals were involved in the review process over its six years. They range from unregulated to regulated groups and those which sought regulation, consumer groups and many individuals.

As I pointed out, the review team went out with a series of communications to the interest groups, asking questions, asking for responses, and then refined those responses over a period of time, asking more and more specific questions to the point where basically the questions had been answered and recommendations could be made to the government.

That brings us to tab D, which are decision points during the process. In this section we have government announcements. I will hit the highlights on those to refresh everyone's memory, and then we would like to spend significant time on the criteria for self-regulation, the professions to be regulated, the criteria for controlled acts and a little bit about title protection. Then Linda will take over.

If we look at the specific announcements, I would like to point out one thing. While the review was going on, it was totally at arm's length from the government and there was no parallel process in the Ministry of Health. There was one person who, if the review team had bills that needed to be paid, made sure that took place. Also from time to time, when the review was ready to finish one phase of its endeavours, and go forward, it needed some policy direction. The individual in the ministry at that time -- Paul Gardner was his name and he deserves, I think, a lot of credit for the six years of work he put in in support of the review team -- brought those things forward and sought the necessary direction and then was able to convey that back to the review team, which allowed it to get on to the next phase of work.


If you look at the government announcements, they start with one in November 1982. It mentions Mr Grossman. It simply says that each profession would be asked to participate in the development of legislation for its own profession under the aegis of an independent review.

Flipping the page, we see that the next announcement came in August 1983. This was made by Keith Norton, the minister of the day, and it announced that the review team would be headed by Alan Schwartz and he would be supported by the Canada Consulting Group in the endeavour.

Flipping the page again, we find another announcement. This is dated January 1986. This was made by the Minister of Health, Murray Elston, and announces the midwifery task force being created. The task force was struck to establish and to recommend to Mr Elston and to the Minister of Colleges and Universities a framework for how midwifery should be practised in Ontario and how an educational program could be developed and implemented. It was chaired by Toronto lawyer Mary Eberts and was asked to address the issues of training for midwives, professional requirements, scope and standards of practice, governance of the profession, location of practice, patient access, hospital status and whether midwives should operate as independent practitioners or as part of an organized service. The task force was undertaking its initiative at the time the review itself was going on.

Then in April 1986 there was another announcement by Mr Elston, the minister of the day. Mr Elston announced 25 health care professions which would be included in a new provincial regulatory system to replace existing legislation. He announced that seven professions would become regulated for the first time. When we use the term "regulated" in this context, we are talking about self-governance. The professions would be audiology, dietetics, medical laboratory technology, occupational therapy, respiratory technology, speech-language pathology and midwifery.

At the same time Mr Elston made this announcement, he also talked about the things that were going on in the review at the time and he pointed out that the review team was again trying to answer the questions: is regulation by the Minister of Health appropriate, is regulation necessary, is regulation possible and is regulation feasible?

He listed those professions that would continue to be regulated. He named chiropody, chiropractic, dental hygiene, dental technicianry, dentistry, denture therapy, massage therapy, nursing, ophthalmic dispensing, optometry, osteopathy, pharmacy, medicine, physiotherapy, podiatry, psychology and radiological technology.

He also made reference to a group which is currently regulated, naturopathy, pointing out that in the opinion of the review team it did not meet the criteria for continued regulation. He also mentioned that the review team would move to the second phase of the legislative review, which would attempt to define the scope of practice of the various health professions and address other issues that arose from the decision to regulate.

Slightly later, in March 1987, Mr Elston made another announcement. This one concerned the professions of dental hygiene and nursing. He indicated that a decision had been made that dental hygienists would have their own governing body under the new scheme and the College of Nurses of Ontario would continue to regulate both registered nursing assistants and registered nurses. In his statement he pointed out that there were significant differences between registered nursing assistants, for example, and dental hygienists to justify different regulatory structures. I think you will probably hear something further about these issues as we get into specifics.

Then, on May 7, 1987, Mr Elston made another announcement, which was that the Health Professions Legislation Review had been instructed to develop legislation that would, in most cases, open hearings involving self-governing bodies for the health professions to public scrutiny. The principle of accountability was mentioned as a fundamental principle to be observed. The notion was that by making the process more open, the professions would be more accountable in the public eye. At that point, Mr Elston also referred to proposals to open the activities of governing bodies to the public which had been made by the review team in a document prepared in October 1986 for circulation to the interested parties.

Before continuing, I just point out here that this is some of the documentation assembled by the review team. It is pretty weighty and we obviously did not copy everyone in on this. If we had brought everything it would have filled a truck, literally, when the review team finished its work. My branch became responsible for implementing bureaucratic support and trying to develop draft legislation for the government. We inherited the review team's files and they literally did fill a truck. I would point out that the public documents from that exercise have all been placed in the Ministry of Health's library and are available to one and all, so much of this documentation is readily available to the public.

It covers a wide range of things. There is a survey of health professional legislation in other jurisdictions. For example, there is Working Out the Details, a workshop that was held with participating groups. There are some famous publications here, red books and green books which are well known to the participants in the review. This was the kind of material that was sent out, along with that list of correspondence that I pointed out earlier, eliciting specific feedback from the participants to the review on a specific set of proposals. There is a wide range of other documentation as well. I just wanted to point out that the review team did spend an awful lot of time thoroughly looking at various aspects.

By the end of 1988 the review team was able to make its final recommendations to the Minister of Health at that time, who is the chair of this committee. It came in the form of a report called Striking a New Balance: A Blueprint for the Regulation of Ontario's Health Professions. It was in the form of draft legislation, because that is what the review was asked to do. However, it was made very clear, when the minister tabled legislation on January 26, 1989, that these were simply proposals from the review team and were the result of six years of work. In this document, in addition to the specific draft legislation there was an introductory portion. On the left-hand side of each page was some explanation for the rationale for the changes that were being recommended by the review team.

Then, as I said, on January 26, 1989, Minister Caplan introduced and tabled the report of the review in the Legislature. Some things are worth quoting from that statement: "`Protection of the public will be the primary objective of any legislation I introduce,'" she said. "More than 200 groups involving approximately 75 health professions have already participated in the consultative process.... More than 7,000 pages of submissions were received and the review published eight major discussion papers."

Then on June 6, 1990, the next statement in the folder appears and it is the actual introduction of legislation based on the recommendations of the review. Prior to this introduction you will recall that I said there was no parallel process within the ministry. When the receipt of the report occurred we put in place a bureaucratic process by which virtually anyone who wished to comment on these recommendations was heard. Over the course of the next year and a half or so Linda and I had some 350 meetings with individual professional groups, be they the governing body or the voluntary association, individual practitioners, consumer groups, individual consumers. I do not think we could even count up the number of telephone calls we answered and the number of letters, but it was certainly very sizeable.

As a result of that we were able to provide assistance to the government of the day. The government of the day also had a political-level process whereby the chair of this committee had over 60 meetings with professional governing bodies and voluntary associations and major consumer groups to hear at first hand their feedback on the recommendations.

The result of all that was a distillation of all this feedback and the government was in a position to make some decisions about the actual content of legislation proceeded with the legislation and the next statement in your package, still under tab D, is the statement of the minister, Mrs Caplan, on June 6, 1990, on first reading.

In that statement there were a couple of things that were announced. She mentioned that quality assurance requirements had been incorporated into the package. She also talked about the basket clause, or the harm clause, which we heard about earlier, subsection 27(4), and the fact that it had been removed. It was the intention of the government of the day to introduce wording for a new clause. That was mentioned. She talked about an exemption through regulations for attendant care to assist people who were perhaps less fortunate to receive assistance with the activities of daily living.


She also talked about naturopathy, making the announcement that while the question of naturopathy remained unresolved, it was the intention of the government to not deregulate naturopathy and to refer the question of the scope of practice of the profession to the Health Professions Regulatory Advisory Council, which is to be created if this legislation is passed.

She also announced that there would be an interim Health Professions Regulatory Advisory Council to assist with the transition to the new scheme.

The next announcement was on April 2, 1991. The minister of the day, Evelyn Gigantes, retabled legislation not a great deal different from what had been submitted to the Legislature by the previous government, again talking about the tremendous amount of work that had gone into the preparation of the legislation based on the review's recommendations, with no fundamental deviation from the recommendations of the review team.

In the course of that presentation, Ms Gigantes announced that the government intended to bring forward amendments to increase public membership to just under half on the governing bodies, and also to double the number of public members, or non-professional members, on discipline committee panels within the colleges from one to two. She referred to the basket or harm clause and stated that the government did not intend to include it in the legislation, that the government was convinced that the controlled acts provided ample protection, based on the evidence it had heard to date.

In that announcement there was also mention made with respect to naturopathy, that it would continue to be regulated under the Drugless Practitioners Act, and that the question of the profession's scope of practice would be referred to the health professions advisory council. I must correct a mistake I made. In the earlier announcement the previous government had stated that the matter of their continued regulation would be forwarded to the council and, in the most recent statement on first reading, the question of the scope of practice would be referred to the advisory council.

Also, reference was made to amendments or exemptions for personal care attendants and for acupuncture. These would exempt those activities from the controlled acts scheme, essentially putting them in the public domain.

Ms Gigantes said that she would direct the advisory council to conduct a review of the operation of the legislation to take place five years after it came into force.

The last announcement in tab D is notes for a presentation made by the current minister, Frances Lankin. Ms Lankin referred to those particular comments earlier this morning, so I certainly will not repeat them.

The next section in the briefing book is section E, and these are the criteria for self-regulation. We thought it would be valuable to spend a little bit of time on this, because these are the criteria that were developed in consultation with the participants in the review. I am going to paraphrase here, but essentially and simplistically, the review team said: "What are the rules by which you would like to be judged yourself? What is fair? What is equitable?" I think it is safe to say that there was not unanimity, but there was consensus that these were fair rules. They are the rules by which the review looked at this massive input it had received, so that halfway through its six years it could make specific recommendations about who should and should not be regulated. It applied these criteria to the submissions that had been received.

The first criterion is "Relevance to Minister of Health: A substantial portion of the profession's members are not engaged in activities under the jurisdiction of another ministry and the primary objective of the treatments they perform must be the promotion or restoration of health." So the profession had to be relevant to the Minister of Health to be self-regulated under a health framework.

The second criterion that the review team applied was "Risk of Harm: A substantial risk of physical or emotional harm to individual patients arises in the practice of the profession." It is also worth noting that in its final report, the review team stated that the bottom line essentially was number two, that the purpose of regulation was to protect individuals from harm, not to provide protection for status or monopolies or image.

The third criterion is "Sufficiency of Supervision," and the criterion is, "A significant number of the members of this profession do not have the quality of their performance monitored effectively either by supervisors in regulated institutions, by supervisors who are themselves regulated professionals, or by regulated professionals who prescribe this profession's services." In other words, there was no alternative regulatory system for one that was affected.

Number four takes that idea somewhat further to the existing framework and other things that could be considered, and that is the existence of alternative regulatory mechanisms. The criterion is, "The profession is not already regulated effectively or will not soon be regulated effectively under an alternative regulatory mechanism." When we get into specific issues, and in some cases profession-specific issues, you will find there are controls on certain hazardous activities under other statutes than the governance for the health professions in that specific legislation.

The fifth criterion was "Body of Knowledge." This too is another very important criterion and led to a number of significant decisions by the review team. This criterion states, "The members of this profession must call upon a distinctive, systematic body of knowledge in assessing or treating their patients, and the core activities they perform must constitute a clear, integrated and broadly accepted whole." We talked about naturopathy a little bit, and it was this criterion that was the most problematic for the review team during its hearings, because the information brought forward to the review by the profession did not allow the review team to make a clear decision in this area with respect to their saying without reservation that they have an absolutely clear, integrated and broadly accepted whole in terms of their practice and a distinctive body of knowledge.

Subsequent to the review, the profession brought forward additional information and presented it in a different way, which persuaded two successive governments to deviate from the review's recommendation in this regard. But the core of a profession is its body of knowledge, and without a significant body of knowledge, one can ask the question, how could a profession develop standards of practice, how can it govern itself if it does not have a body of knowledge that is unique to that group? If it is not unique to that group, then maybe it should be governed somewhere else.

The sixth criterion dealt with educational requirements for entry to practice, and it stated, "To enter the practice of this profession, the practitioner must be required to obtain a diploma or degree from a recognized Canadian educational institution."

The seventh criterion was the leadership's ability -- that is the leadership of the profession -- to favour the public interest. The criterion reads, "The profession's leadership has shown that it is able to distinguish between the public interest and the profession's self-interest and in self-regulating, will favour the former over the latter."

The eighth criterion is "Likelihood of Compliance." The criterion reads, "There is enough willingness among the members of this profession to acquiesce, at least, to self-regulation that widespread compliance is likely."

The ninth criterion was "Sufficiency of Membership Size and Willingness to Contribute: The practitioners of the profession are sufficiently numerous to staff all committees of a governing body with committed members and are willing to accept the full costs of self-regulation. At the same time, the profession must be able to maintain a separate professional association."

The review team applied these criteria, and the next piece of paper under tab E is the first cut. Some 75 groups sought self-regulation before the review, and by applying these criteria the first cut resulted in -- I think there are 39 here. These were basically professions that met a substantial number of the criteria, but where there were remaining questions that needed to be asked. The review team was able to go forward with this list.

The ones that were dropped from the list did not meet sufficient criteria, in the opinion of the review team, to warrant continuing in the process.

The Chair: It is important for the committee to note that it is 12 o'clock noon. Is it the wish of the committee to adjourn now until 2 o'clock or continue on to a certain point in this presentation today? Any direction?


The Chair: The presentation is going on all day. You want to complete to the end of section E?

Ms Haeck: That is right.

The Chair: Agreed? Okay.

Mr Burrows: Finishing off section E, there are a number of pages, and these are here; for example, the identities of the various groups we felt were not that important. These are working papers from the review. It will give you some indication of the way the review team went through this information that had been brought to it and applied the various criteria.

If you look at the first page, for example, at the bottom of the page that says number nine and the topic -- the criterion they are looking at is numbers -- it says that the profession they were looking at argued that a "history of self-regulation proves their ability in spite of low numbers." But the review team concluded that it could not believe that this group "alone, or in combination with" another group "currently have enough members to be fully self-regulating," that they could not staff the committees, their responsibilities, complaints and discipline and so forth, or fund self-regulation.

I will not go through the other pages, but these are other examples of the review team looking at how these groups did or did not meet these nine criteria. For example, the second page, looking at risk of harm, the statement is made that the review accepts the argument that group such-and-such "may pose a risk of harm." It talks about some of the things they do and some of the techniques this particular group is involved in -- a large amount of detail. Again, the information is essentially coming from the professions themselves in response to questions, constantly refined questions, constantly more detailed answers, and then in the end these criteria are applied and the review makes a set of recommendations based on the application of those criteria.

That brings us to the end of tab E. I guess it is the wish of the committee we stop there and continue after lunch.

The Chair: Is it the wish of the committee to ask any questions prior to breaking for lunch on what we have heard up to the end of section E, or do you want to hold that until we come back after the lunch break?

Mr J. Wilson: Hold.

The Chair: Hold? We will adjourn now until 2 o'clock and reconvene. We will, as far as procedure is concerned, determine at that point when we want to be able to ask questions of Mr Burrows, at which point in his presentation.

The committee recessed at 1203.


The committee resumed at 1408.

The Chair: Are we ready to begin? The committee is now in session. With agreement, as all three whips are here -- it has been standard convention at these committees to begin at the appointed hour or as soon as there is one representative from each of the caucuses present to constitute a quorum. Is that acceptable? Thank you very much.

We left off at the end of section E, and there was going to be some discussion about at what point the committee wanted to be able to ask questions. If it is acceptable to all the committee members, please signal me if you have a question and just let me know whether you want to ask it immediately, if something that Mr Burrows or Ms Bohnen says provokes you. If not, I will hold it until they finish the next tab, if that is acceptable.

Mr Burrows: We are starting again at section F, tab F. This is simply a list of those professions that are proposed for regulation. Once again I would remind you that when we use the term "regulation," we are talking about self-governance.

Each of these professions, if it is regulated, relates to a specific piece of legislation that governs it. I will not go through the whole list, but as an example, looking at the first, audiologists are not currently regulated. You will recall that is one of the lists I read out earlier. That basic list of who would and would not be regulated has not really changed since the review's recommendations, with the exception of naturopathy, which I mentioned earlier as well.

As you go down the list, you will see that chiropodists have the Chiropody Act, which dates from 1944. The chiropractors are under the Drugless Practitioners Act, dental technicians under the Dental Technicians Act, dental hygienists under the Health Disciplines Act, dentists under the Health Disciplines Act, denture therapists under the Denture Therapists Act, etc. There are eight separate pieces of health professions legislation. Again, that is one of the reasons the review was called, because it is all over the map in terms of its age, its composition, and different sets of rules for different groups of health professions. That in itself has created kind of hierarchy over the years, which is one of the things the review attempted to try to eliminate through its recommendations.

If we look at tab G, this is another list of criteria, which is very important. This was used by the review team to look at the controlled acts, the so-called licensed acts. Linda will be talking at some length about the scope-of-practice models, so I will not dwell on that other than to remind you that the basic scope of practice as contained in this set of bills would base registration for each of the health professions on a different model. The only thing that would be licensed or controlled would be a set of potentially hazardous activities.

In deciding what should be on that list, the review team proposed some specific ideas, and those ideas were again based upon the application of a set of principles to the material at hand. So there is some material here from the review itself. At various times during the process, the review brought forward for policy direction various options, and some of the material in this brochure comes from those presentations. You will note, for example, that at the bottom of the page, the first item under this section, it says, "Health Professions Legislation Review." Anywhere you see that, you will know it is one of the review's original briefing documents.

The first such page is headed "Listing licensed acts will establish clearer limits on the exclusive practice of regulated health professions." These are the review's opinions, I would remind you, as opposed to legislation, but they are worth repeating.

The review team said that "licensing acts will reflect current practice of governing bodies to enforce their broad licensure provisions selectively, generally focusing on specific acts." It went on to say that "articulating licensed acts will provide better definition of the border between exclusive and non-exclusive practice."

Then they made three points: the first one, that "governing bodies will be better able to enforce their licence provisions against unregulated practitioners"; second, "the courts will have better guidance when determining the extent of professional monopoly"; and third, "unregulated practitioners and regulated practitioners without explicit authorization to perform certain licensed procedures will better understand the limits of their own practice."

They continue by saying that "licensing specific acts will allow increased flexibility to share exclusive acts between professions with fewer turf battles because the act will be explicitly recognized with each profession's scope of practice."

The last point on this page is an important one in terms of public policy. It says that "governing bodies will be encouraged to promulgate standards of practice for each licensed act which may restrict the performance of the act to specially qualified members."

The tests or the criteria that were applied to determine whether an act or an area of practice should be licensed are on the next page. It is again worth looking at each one.

The first point is that "the nature and extent of harm either inherent in the act or when the act is applied to select populations must be significant." So the first criterion was relevant to the significance of the risk of harm.

The second test as to whether the act should be licensed is that "licensing acts must be a more appropriate response than institutional or other controls."

Third, "the act must be practised without direct supervision or supervision exercised through institutional protocols," such as, for example, the rules that might apply in a hospital.

Fourth, "the prohibition imposed from licensure must be enforceable." One of the criteria the review team used was that you cannot just have an act or a control; it has to be realistically enforceable.

Fifth, "practitioners must be adequately trained in current educational programs to perform the act."

Sixth, "prohibitive costs or unreasonable rigidities in the system should not be imposed on the health care system."

The next page is a working document. This is a list of the proposed licensed or controlled acts at one point during the review process. It is quite different from the final list and is here only to serve as an example to show you that this list did evolve as information came forward and as the criteria or tests were applied.

Section H is the actual list of controlled acts. Again, I will not repeat each and every one of these, but I will use a couple as examples. Most of them are very concrete; they deal with specific activities. Number three, for example, is "setting or casting a fracture of a bone or a dislocation of a joint" -- straightforward.

But if you look at number one, this is a cognitive act and, essentially, this is the legislation's attempt to capture the notion of a traditional kind of medical diagnosis. It reads as follows: "Communicating to the individual or his or her personal representative a conclusion identifying a disease, disorder or dysfunction as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the conclusion." This is the one we heard about this morning. It is one that Linda will come back to, when we are talking about issues, to explain in more detail. But that is the actual wording of the proposed licensed act.

We have a complete list, if you will turn over the pages, right down to 13. Number 12 is "managing labour or conducting the delivery of a baby"; 13 is "allergy challenge testing of a kind in which a positive result of the test is a significant allergic response."

One of the interesting observations: Towards the end of the review process and during the consultative phase within government after the receipt of the recommendations, virtually everyone was asked a similar question. It was: "Is this list complete, and can you or can you not add to this list if you think it is not complete?" Suffice it to say that from the review team and subsequent to the receipt of the review's recommendations, no one has made a substantial suggestion as to how this list should be altered. There is general consensus that this list of generic acts, although it certainly does not describe in great detail, does capture, generically again, the body of potentially hazardous acts that meet the tests applied by the review team.

I have last item related to the review before Linda takes over, and that is under tab I. One other issue that you are going to hear a lot about is title protection, and this again comes from the review team. The review said that "the key concern is the use of qualified titles using words such as `registered' and `certified.'" I think Linda is going to talk a little bit about the difference between registration and certification. It is an important distinction.

"The review's proposals have been contested by professions who are motivated in part by: status concerns; an attempt to create or maintain an economic monopoly; the desire to do indirectly what has been directly prohibited." I would remind you again that this is the review team speaking here. "Another issue involves protecting reference to the profession (e.g. audiology) as well as the professional (e.g. audiologist) as part of the protected language."

Finally, the review team said, "A few professions have suggested that the `holding out' provision in the legislative proposals may not provide sufficient protection from non-registrants using close derivatives of the protected title." We will be hearing a lot about this in the weeks ahead, and we thought it was important that you see the review's general feelings on the subject. The "holding out" provision we talk about is when someone holds themselves out to be something; for example, holds themselves out to be a nurse or a physician or a physiotherapist.


Ms Haeck: Mr Burrows, over the last few weeks I have received some correspondence from people working in academic institutions who hold doctorate degrees; they have a concern that they will not be able to use the title "doctor." Do you have any comments to make on that?

Mr Burrows: I will make a very brief one because Linda is going to be talking about this under the actual issue and she will go into it in as much detail as you would like. Essentially, the control on title would apply only in the health care setting; it would not preclude people from identifying themselves as PhDs and so forth. Linda will explain that in detail. It definitely relates only to particular health care settings as opposed to the general use of the title.

The Chair: That takes us to the end of section I. Any questions at this point? Ms Bohnen is going to continue.

Ms Bohnen: I would like to start by outlining the two fundamental aspects of the regulatory model incorporated by the legislation.

First, if I could direct you to the second sheet in tab J, I want to talk a little bit about this being a model of self-regulation or self-governance.

The sketch on this page is an attempt to depict visually the legislative framework within which the colleges at the centre of the piece regulate their own members; they also have important interactions with patients or clients of members and, to a more limited degree, with others such as hospitals or other employers of health professionals.

Then above the colleges, at least visually above them, are the Ministry and the Minister of Health with their own responsibilities, powers and duties vis-à-vis the colleges.

Off to the side are the courts, the Health Professions Board and the Health Professions Regulatory Advisory Council, which you have already heard something about, at least vis-à-vis the council, which also have a role to play in the regulatory framework.

This legislation puts in place the structures, the rules of procedure and the legal principles by which this entire structure operates. It is a system of self-regulation or self-governance.

This might be a good time to address an issue that is very important to the discussion of self-regulation: the minister's powers. A question was raised about that this morning, and I think you have heard or will be hearing from some groups which feel that the way the minister's powers are expressed in the Regulated Health Professions Act may compromise self-regulation. At least it is perceived in that way.

In fact, the nature of the minister's powers was discussed in some detail in the review between these infamous green books and red books. While I am on the subject, I might just hold it up to demonstrate that the proposals the review generated were printed and distributed to all participants.

In this green book it took place in October 1986, and what you see here -- we can circulate this -- is a very early, primitive draft of a Regulated Health Profession's Procedural Code. After this was circulated to participants, and all their written and oral submissions were received, another version of it was published in the red book in June 1988, with commentaries that reflected the changes made by the review on the basis of the submissions that had been made. Finally, the submissions on the red book were what led to the final modifications in the published turquoise book, "Striking a New Balance".

Among the provisions that were modified through this process were the minister's powers. In fact, one important power which the review proposed in the green book was dropped from the red book. That would have been the power given to the minister to inquire into, or direct a council or committee of a college to inquire into, any matter related to the practice of a member or members of a profession.

That would have given the minister, for example, the power to require a discipline hearing to be held in relation to a member. Many groups felt that would have undermined self-regulation and procedural safeguards so that was dropped and did not appear in the red book.

Some other powers the minister would have had, to direct committees to take certain actions as well as the council itself -- the council being a little board of directors of the college -- were also dropped between the green book and the red book. The review responded to submissions from groups that it was very important to preserve self-governance and the appearance of self-governance.

Finally, in the green book, the minister was given the power to require councils to undertake activities that were necessary and advisable to implement this legislation. The word "require" was used: may "require" the council. That word was used in the green book. It was changed to "request" in the red book, but it was coupled with a provision which, in essence, said it may be a request but the minister can require a college to comply with it within a set time. It was a funny kind of request.

However, legislative counsel said: "We don't do it that way. If we mean `require,' we say `require.'" So the word "require" was restored in the bills. I think that seemingly innocent change from "request" to "require" is generating some of what you may be hearing about the minister's powers in the legislation.

Two other points it is important to make, or one other point, as I have mentioned the degree of consultation that has gone into this procedural code and the structures: The title "Striking a New Balance" in the reviews and recommendations is a very significant and important one. It may not matter very much whether a word is changed in one particular provision here or there, as long as this balance is maintained, because it is a balance that has been developed through some six years of negotiation and consultation. It is a balance that the majority of interest groups continue to support, and it is a balance, I think, which two governments have felt would achieve the result of effective self-regulation.

I hope that sketch has shown you the structure that all of these individual procedural provisions relate to.

Mr Beer: Could you give us a specific example, if this were passed and became law, of something a minister could do that she cannot do today? Does it mean simply that under this she would have the authority to require that certain things be done, and that at the present time she cannot? What are we dealing with here?

Ms Bohnen: I am not sure we are dealing with a whole lot that is different. For example, currently under the Health Disciplines Act the minister has the power to request a council to make, amend or revoke a regulation. Then there are related provisions which go on to say that if they do not make the regulation within, I believe it is 60 days, the government can make the regulation for them.

Mr Beer: This would be a direction, for example, to the College of Physicians and Surgeons; so today she could say, "Thou shalt do such-and-such," and if they do not, under the present act --

Ms Bohnen: She would say, "Would you please make a regulation?" and they would probably say yes -- it does not happen very often. But if they said no, then she would say, "Okay, if you don't make it within 60 days, the government will make that regulation."

Mr Beer: So that is possible under the existing --

Ms Bohnen: Yes, it is.

The Chair: There was an example of that in 1982.

Ms Bohnen: It was a regulation dealing with extra billing, as I recall.

The Chair: I believe the minister of the day asked the College of Physicians and Surgeons to draft a regulation that would require the posting of information regarding extra billing to patients. The college said, "No, we would rather not make the regulation," and 60 days later the minister did. I believe that is correct.


Mr Beer: The reason for my question is just that I want to be able to understand better why some people are raising questions.

Ms Bohnen: We have had meetings with some of the groups raising the question. When pressed they have said: "Yes, we know the substance of the powers is more or less the same, but we really prefer the word `request' even though it's clear it's a mandatory request. We just don't like that word `require.'" That regulation example is a clear instance of it. The Health Disciplines Act uses the word "request" with a provision saying that you have to comply within 60 days. This bill says "require."

Mr J. Wilson: I have not read the schedule 2 disciplinary section, but what would the minister's involvement be in discipline in the professions? Final appeal?

Ms Bohnen: No, the minister, in fact, has no role to play. The professions are responsible for disciplining their own members and the minister has neither the power to require the college to conduct a discipline nor does she sit in appeal from a discipline decision.

Mr J. Wilson: So it does not change from its current status.

Ms Bohnen: That is correct, whereas one of the early proposals of the review would have changed that quite dramatically. It would have empowered the minister to require a college to discipline a member.

Mr Beer: Can I qualify that? There is still the right an individual would have to go to the courts, as in the Steven Yuz affair?

Ms Bohnen: Yes, there is an appeal to the Divisional Court from a decision of the discipline committee.

Mr Beer: And that remains.

Ms Bohnen: Yes, that remains.

Mr Callahan: The appeal to the Divisional Court would only be on the jurisdictional question, would it not?

Ms Bohnen: No, it is not judicial review. It is an appeal on a question of fact or law or both. It is a full appeal.

Mr Callahan: That is set out in the legislation?

Ms Bohnen: Yes. Subsection 68(1) of the procedural code says, "A party to proceedings" -- and I will just pick out -- "before a panel of the discipline...committee...may appeal from the decision of the...panel to the Divisional Court." Subsection (2) says, "An appeal under subsection (1) may be made on questions of law or fact or both." That is essentially the same as the Health Disciplines Act appeal provisions, unlike the situation under some of the other statutes where there is only judicial review.

The most innovative part of this legislation lies in the area of regulation of scopes of practice, or who can do what. If you turn to the next page in the same tab section, on the back of the previous page we see that this legislation determines the activities that can be performed by various practitioners, both regulated and unregulated. So it answers that important question, who can do what, but it answers it in a way that is quite different from existing legislation.

I would like to explain that by taking you back to what the existing legislation provides. We try to depict it in the drawing which is in your material; it shows two circles. Under current legislation, practitioners, like physicians, have what is referred to as an exclusive licence to practice. Any service within the scope of practice of medicine is restricted to physicians.

There are exceptions to that through delegation and other specific statutory provisions, but in general terms it is correct to say that if something falls within the scope of practice of medicine, only a physician can do it. We have depicted that with this large outer circle.

We know that if you analyse the functions that physicians perform, some of them are quite hazardous, such as surgery or performing X-rays. Other activities are not hazardous at all, things like conducting a physical examination, taking a history, taking a blood pressure, counselling and so forth. But all those activities under the current legislative model are restricted to physicians because they fall within their scope of practice.

What the review tried to do was come up with a new way of saying who can do what that did not depend on the idea of exclusive scopes of practice, but rather just identified hazardous functions, hazardous areas of practice and procedures, and said, "Those hazardous things we are going to closely regulate, but anything else, anything in the nature of an assessment, in the nature of counselling, a huge number of pretty low-risk activities, we're going to leave in the public domain as much as possible." That thinking is what ultimately led the review to invent the list of licensed or controlled acts that Al showed you a minute ago.

You have to grasp the difference between the old model and the new model to make sense of this legislation, so I am going to try to go over it in a couple of different ways to try to make it clear.

Mrs Cunningham: Just before you go any further, so I can grasp it, when you talk about low risk -- I cannot remember the words but you said it twice -- you talk about medical examinations and you talk about counselling. Would you describe to me what you mean by low risk so I can grasp it, because I consider both of those, myself, to be very high risk, from what people tell me.

Ms Bohnen: Perhaps I can approach an answer by telling you how the list of high-risk and therefore controlled activities was generated. That was done by asking the professions who were involved in the review to itemize the procedures or activities which they thought were the most dangerous things they did.

Mrs Cunningham: Dangerous in what way?

Ms Bohnen: That might cause significant physical or mental harm. So the first cut was just a list. The review asked them, "Write down everything you do that you think can cause significant physical or mental harm." The list was quite long.

Mrs Cunningham: I bet.

Ms Bohnen: The review then applied the criteria that Al reviewed a short time ago to try to select out, for example, those which were adequately controlled through some other mechanism. For example, X-ray is already controlled in Ontario through the Healing Arts Radiation Protection Act. It also separated out those which, when you really analysed it, did not seem so hazardous after all, but for which there seemed to be some other interest, perhaps an economic interest, motivating the desire to say it was very hazardous. Also, they applied, I think, a large dollop of pragmatism, realizing that some activities, although they may potentially be somewhat hazardous, are impossible to control. I think counselling is probably the best example of that, because counselling is just so widespread. So many different occupations provide it.

Mrs Cunningham: But is that not controlled in what you described as "in some other way"?

Ms Bohnen: Counselling? I guess some of it is, but a lot of it is not. Think of everybody from MPPs in their constituency offices to the clergy, of course, and teachers.

All sorts of counsellors without the benefit of regulation practise in Ontario. It was felt it was logistically impossible to control it, to limit who can provide it. It may be that they also felt there was not sufficient evidence of significant actual harm being done, or at least harm that would outweigh the need to have readily available counsellors of many different kinds.

Mrs Cunningham: What you said today is certainly sufficient for me at this point in time. We can maybe ask some of the witnesses the questions that flow from what you have just said.

On the other one, though, this medical examination -- you have answered the counselling one -- when you said that, did you mean that others would in some way do medical examinations, other than physicians? Did you have that in mind or is that something that we should be thinking about?


Ms Bohnen: A good example is the nurse practitioner -- a member of another regulated profession, obviously -- who is qualified, trained, to provide many kinds of assessments, well-baby assessments and so on.

Mrs Cunningham: So that is an example of something that is regulated in another way?

Ms Bohnen: Nurses are not physicians, and currently, of course, they are not licensed to practise medicine. Some would argue that the kind of physical examinations and assessments they perform is darned close to the practice of medicine, but it is clearly very desirable for them to be able to do that, and they are a member of a regulated profession.

Mrs Cunningham: That is what I meant. Okay, for the moment.

Ms Bohnen: All right.

The Chair: Mr Callahan.

Mr Callahan: I am interested in what you said about enlarging the scope of what was exclusively the bailiwick of somebody else where it is not a hazardous item. Yet I look at section 4, paragraph 2 of the Chiropractic Act, Bill 46, and it talks about "moving the joints of the spine." That is surely a reduction in the available techniques that a chiropractor can carry out now. He can flex limbs. Why is that gone? And does that not fly in the face of what you are --

Ms Bohnen: You have pointed to an element of the regulatory model, but not the controlled acts. Flexing a joint is not a controlled act to begin with, so you cannot say it is taken away from a chiropractor.

Mr Callahan: But it says, "In the course of engaging in the practice of chiropractic, a member is authorized...." So I gather that is what he or she is allowed to do, and it strictly limits it to the joints of the spine.

Ms Bohnen: It does not strictly limit it. I think it really might help if I went through the elements of the regulatory model to make it clearer how this fits together, if I could do that.

Okay. The intention was to come up with a system that would protect the hard core of hazardous activities that ought to be strictly controlled, but free up in the overall health care system the performance of relatively low-risk activities. So how do we do that? First of all, every profession is given a statutory scope-of-practice statement that describes what the profession does, the methods it uses, the purpose for which it does it, but does not restrict to the profession the activities within that description. It is just a description. It has many uses within the health care system, the education system, for employers, for patients and so on. But it does not create a monopoly or an exclusive area of practice. It is really a descriptive use only.

Coupled with the scope-of-practice statement is the list of controlled acts you saw earlier in the book. If something is not on that list of 13 categories of controlled acts, anybody can do it. So when a chiropractor, or any other practitioner, says, "Am I going to be able to do such-and-such?" the first place you look for the answer is to section 26 of the Regulated Health Professions Act, which sets out exhaustively the master list of controlled acts. Anything in those 13 categories that are listed in subsection (2), provided it is done in the course of providing health care service, is controlled. So if something like moving a joint is not on that list, then you have your answer: The chiropractor or anybody else can do it, because if it is not on the list, it is not being taken out of the public domain to begin with.

Mr Callahan: It is on the list, though.

Ms Bohnen: Not a joint.

Mr Callahan: Well, section 26, paragraph 4, says, "moving the joints of the spine."

Ms Bohnen: "Of the spine." That is spinal adjustment.

Now, if something is on that list, then the second stage of the inquiry is, "I'm a nurse," or "I'm a chiropractor," or I am a whatever: "Can I do it?" To answer that question, you have to look at the Chiropractic Act, the Nursing Act, etc, and look in the relevant section of the act to see what the authorized controlled acts of nursing, chiropractic, etc, are.

To focus on chiropractic, they want to know, "Can I manipulate the spine?" Start with the spine. We see from paragraph 26(2)4 that "moving the joints of the spine beyond the individual's usual physiological range of motion," etc, is indeed a controlled act. We then move to Bill 46 and see that, in section 4, paragraph 2, chiropractors are authorized to move the joints of the spine beyond a person's usual physiological range of motion. So that is how we track through the legislation to see who can do what. Okay?

Mrs Cunningham: Just to follow up on Mr Callahan's question, my understanding is that that is what they are doing now, but they are doing more than that now: They are doing shoulders and wrists and knees and necks.

Mr Callahan: What she is saying is they are still likely to do that, but it is not under this controlled act section.

The Chair: Mr Callahan?

Mr Callahan: We would only worry about the spine.

The Chair: For Hansard, you are identified first, so if there is going to be conversation between the committee, just signal, and I will mention your name.

Mrs Cunningham: So you are saying they can still do that?

Ms Bohnen: Yes. What they are concerned about has to do with the diagnosis of conditions of the joints that are not related to the spine, but I do not believe that they are concerned about -- it is not my information, nor what I understand why they would be concerned about their ability to continue to manipulate these joints, because the only kinds of manipulations being controlled in any event are spinal manipulations. Okay?

Mrs Cunningham: Well, from a consumer's point of view, the big problem there is, does one have to be referred now to a chiropractor by someone who has diagnosed? That was my first question. My second, diagnose, let's say, the neck. Or would the better question be, no, they do not have to be referred now nor will they have to be referred in the future. If so, who has made the diagnosis?

Ms Bohnen: The neck is pretty much the spine, so I am not sure it is the best example.

Mrs Cunningham: Let's use the knee.

Ms Bohnen: All right. A person does not now need a referral from a physician to go to a chiropractor, nor will there be anything in the legislation to require a referral in the future. If you go to a chiropractor with a knee problem -- I mean, the patient does not know what the knee problem is; they just know they have a knee problem -- the chiropractor, under this bill as it now stands, may diagnose the problem of the knee if that problem has a connection to a problem of the spine or the effects on the nervous system. Under the bill, though, if that problem of the knee has no connection whatsoever with a problem of the spine or a resulting problem of the nervous system, then the chiropractor may assess that knee problem and advise and provide treatment for it, or -- and the chiropractor is trained to do this -- the chiropractor may refer the person to a physician because he believes that the symptoms are such that this knee problem does need a medical diagnosis that the chiropractor cannot provide.

So lots and lots of problems can be assessed and treated without the necessity of a diagnosis, and people like chiropractors are trained to distinguish those from other conditions which do require a different kind of practitioner's diagnosis.

Mrs Cunningham: So the key words are "assess" and "diagnose." That is the difference?

Ms Bohnen: Yes.


Ms Haeck: This is sort of dancing around the same point, and I want to be quite specific because I have had questions that were that specific, and that is relating to carpal tunnel syndrome. I think basically you have answered it in your answer regarding the knee joint problem, but could you actually tell me that this is exactly what you are saying? Sorry if I appear a bit thick, but I really would like to make sure that I have it clear when I am talking to the practitioners in my area.

Ms Bohnen: I do not feel I know enough about carpal tunnel syndrome to know whether it is something that has any connection whatsoever to the spine or the nervous system, but let's assume that it does not. I do not know if it does or it does not, but we will say it does not. It is just a discrete condition that has no connection to a spinal problem or a spinal problem that affects the nervous system. In such a case, a chiropractor could assess his or her patient and decide that a particular course of treatment will be effective for this patient's set of symptoms, but could not conclusively communicate a diagnosis of carpal tunnel syndrome.

Mr Cordiano: For those of us who are somewhat ignorant, what is carpal tunnel syndrome? I have never heard of that term.

Ms Haeck: It is for those people who spend a lot of time doing repetitive acts, especially for people who are doing typing with computers, and usually it affects the hand. I have to say I am also not a medical practitioner of any sort -- I guess we are all in that boat -- just having had a few people in my office with workers' compensation problems around that issue. They obviously could speak to it in a much more enlightened fashion than I can, but it is related to repetitive acts. I cannot answer the question to what degree it affects strictly the nervous system or other --

The Chair: There might be a better approach to these more technical questions as they are raised. I am sure the clerk would have access to dictionaries. If there are terms or terminology which is raised, if you make a point, the clerk can get you the definitions, because I do not think anyone here is expert enough to be able to give the definitions without the assistance of those kinds of dictionaries. So we will make sure they are available, and if you will just make a point of asking, then we will make sure that you have that information.

Mr Beer: Clearly, as Mrs Cunningham underlined, the meaning of "assessing" and "diagnosing" is very critical to all of this, and what one gets from a number of practitioners who come to see us is, when is an assessment a diagnosis or when is a diagnosis an assessment? In the way that you described some of those things, from a layperson's language, they are fairly similar. I do not know whether you are going to be dealing with those definitions a bit later, in which case I would say, let's leave it until then, but it seems to me that is one of the critical points, for those of us who are meeting with different groups, the concern about, "If I make an assessment and it is wrong, can I later down the line be held accountable for that as a diagnosis?" and around some concerns, as expressed to us, of the way in which some of those terms are used. It also gets into the dysfunctional, and I forget what the other words are.

Ms Bohnen: Disease, disorder, dysfunction.

Mr Beer: Right, and just what is, in legal terms, a dysfunction? What is a disease? What is a disorder? I think at some point we need to address those issues in terms of the meaning that is being ascribed to them in the act. I do not know whether this is the point, but I just think Mrs Cunningham really --

Ms Bohnen: I think a useful time to come back to it is when a little bit later we get to the diagnosis issue, because it is really only in relation to the diagnosis controlled act that these distinctions take on significance.

Mr Beer: Okay.

Ms Bohnen: Because the scope-of-practice statements do not carve out exclusive areas of practice, from a legal standpoint they do not have a great deal of significance, and the scope-of-practice statements do not give anybody turf. It is the controlled acts that allocate the controlled acts and that do spawn the turf battles that are legitimately important areas for disagreement and debate. But with the removal of the harm clause, the scope-of-practice statements, which were very largely worked out among the review participants at the review and are widely supported by the majority of practitioner groups, do not have much technical significance any more, so I think that is one of the reasons why legislative counsel, who was not really permitted to redraft them very much, was content with that. From our technical viewpoint, they do not have a whole lot of significance any more, whereas the controlled acts do.

Mr Hope: Did I hear you correctly saying we are going to this diagnosis stuff a little later?

Ms Bohnen: Yes.

Mr Hope: It is the question of whether you have a heart attack or whether the signals show that you are having a heart attack, and it is the communication part that I think a lot of -- even the nursing profession. They were very creative when they communicated to me. They talked about pregnancy and my wife and about midwifery. They talked about a heart attack patient coming in to the emergency ward with all the symptoms of a heart attack. You cannot say the person is having a heart attack, but everything is there showing a heart attack. When you talk to a doctor over a phone -- and this is, again, rural Ontario -- you are telling him everything that is there. You are just not saying, "Sorry, the person is having a heart attack right now."

This is the communication and diagnosis, which I think a lot of people really do not understand, and as we talk more I think we confuse ourselves about this diagnosis and this communication, whatever you want to call it. This is where everything seems to be in limbo around this whole issue. If we are coming back to it -- I would like to, later, because I am going to use some of the examples they have about my wife having a pregnancy, and some of this -- let me tell you, it brought back memories, too.

Ms Bohnen: My preference would be to come back to it.

Mr Cordiano: First, get your wife's permission to do that.

Perhaps this is a question that I should have asked the minister, but I thought I heard her say it is her intent that the harm clause would be removed. I just wondered at what stage that was decided. Was it something that you just decided in the last little while --


Mr Cordiano: Okay, so that was back in April.

The Chair: That was in the documentation, the statement by the minister at the time, Ms Gigantes.

Mr Cordiano: My understanding was that she is leaving it open to be convinced otherwise, and it is a question that I think needs to be addressed because there are certain professions which would still like to see that introduced.

Ms Bohnen: What I heard her say this morning was that she had not yet been convinced --

Mr Cordiano: That it was necessary.

Ms Bohnen: -- that it was necessary; that she had not heard anything to alter her conviction, the government's conviction, that it was unnecessary.

The Chair: Continue, please, since there are no further questions at this point.


Ms Bohnen: The new regulatory system abolishes the concept of an exclusive scope of practice, which is a very important change, and the next couple of pages were included because they demonstrate the distinction between a profession which has a licensed scope of practice, medicine, on the right-hand side of the page, and nursing, which in Ontario has never been a profession that has had an exclusive or licensed scope of practice. Nursing in Ontario has had the benefit of title protection, and we refer to it as a registered profession because of the title "registered nurse." In professional regulatory literature you also hear the word "certified" being used; that if you belong to a profession that does not have an exclusive scope of practice but permits you to use a title that non-members cannot use, you belong to a certified or registered profession.

So as we see from section 75 of the Health Disciplines Act, "No person shall use the title `registered nurse' or the designation `Reg. N' or `RN,'" etc, unless the person is registered under the Health Disciplines Act. But the closest provision to giving nurses any exclusive area of practice is in section 86, which just says that "Every person, other than a patient, who employs a person as a registered nurse" must ensure that the person in essence is a registered nurse. So if a hospital employs someone in a position designated a nursing position, that person must be a registered nurse, but nothing whatsoever stops the hospital from deciding that a particular position need not be a nursing position; it can be a position held by, let's say, a health care aide, because nurses do not have an exclusive scope of practice. That is to be contrasted to section 52 of the Health Disciplines Act, which says, "No person shall engage in or hold himself out as engaging in the practice of medicine unless he is licensed under this part." So you cannot practise medicine without a licence. You can practise nursing without being a registered nurse, and that is the fundamental distinction under current legislation between registered or certified professions and licensed professions.

This distinction, which most jurisdictions have, is being eliminated by this legislation, and instead, every regulated profession will play under the same set of rules. Every profession -- nursing, medicine, dentistry, dental hygiene, etc -- will have a descriptive statement of its scope-of-practice, coupled with certain authorized controlled acts.

Mr Beer: This relates back to something you said before. I do not want to put words in your mouth, but you said the absence of the harm clause, those scopes of practice, those definitions, and correct me if I am wrong, do not mean much or at least do not mean anything legally. When you say you have changed what we see here in front of us, what then is the significance of the scope of practice statement if it has no particular legal bearing?

Ms Bohnen: It does not have legal significance in terms of restricting people to certain areas of practice or in excluding others from areas of practice, but it has social significance and public policy significance in terms of signalling to educators what the curricula to produce a position should be; to employers, when they have a particular function that needs to be carried out -- they should be looking at a speech pathologist or a physiotherapist; to manpower planners and so forth.

Mr Beer: So the protection of the public would be through the 13 controlled acts.

Ms Bohnen: Yes.

Mr Beer: Again, just because I want to make sure I understand, the way the legislation reads today without the harm clause, and that is one thing we are going to have to look at as to whether in our view there should be one and if so what kind or whether we agree with the minister, the protection for the public is through those 13 controlled acts, in effect.

Ms Bohnen: Public protection in terms of who can do what, but of course, other provisions such as title protection, quality assurance, etc, also protect the public.

Mr Beer: Fair enough. Yes.

Ms Bohnen: But in terms of who can do what, yes, it is the controlled acts that you look at.

Mr Cordiano: Following on the heels of that, given what you have just said, and you touched on the point of title protection, from the public safeguard point of view, it becomes even more important with respect to certain types of professions like speech pathologists or psychologists, for example. There are some problems associated with that and I know we will address them as we go on, but just to highlight the fact that title protection then becomes all the more significant, I think it has heightened the interest of those who feel their titles may be, not threatened, but shall we say somewhat confused by the public.

Ms Bohnen: I think title protection becomes more significant, but in two competing ways.

Mr Cordiano: Very much so.

Ms Bohnen: First of all, the public has to be able to identify a speech pathologist, a psychologist, because so much of public safety will depend on recognizing whom you are dealing with. But the public has to have access to complete information about unregulated practitioners as well, because part of the policy thrust of the legislation is to say, "Look, if it isn't hazardous, we should have more competition in our health care system." Well, you cannot have effective competition if patients cannot get information about all the services available to them. What this has tried to achieve is to ensure, yes, that the public is assisted to identify psychologists, speech pathologists, etc, but at the same time that there are not barriers to the public obtaining adequate information about unregistered speech therapists, speech teachers, psychometrists and other kinds of counsellors.

The Chair: Thank you. No further questions?

Ms Bohnen: I would like you to turn to tab K, if you would, because the sheets that follow under the general heading of "The Balance in Each Profession" are sheets which summarize, I guess you could say in a nutshell, what each profession is getting and not getting from the legislation, and it compares that to what it now enjoys under existing legislation; or of course for those currently unregulated professions, how it sort of functions in the health care system without any legislation.

Starting with audiology, I would just like to take you through some of these to assist you in understanding what we meant by the subtitles. As you can see, audiology is not a currently regulated profession, so it has no existing scope of practice. It has no statutory title protection, but we see from this that the title "audiologist" is commonly used within the occupation.

Subheading II is what was proposed by the Health Professions Legislation Review, and sets out the general scope of practice statement and the controlled acts. When we say "proposed by HPLR," we are referring to Striking a New Balance, the turquoise book.

Item III, analysis, was an analysis provided by the review. When the review compared its recommendations for scope of practice and controlled acts to what the profession then had, it said, "Okay, what is it getting?" Well, it is getting statutory self-regulation; it is getting the licence to prescribe personal hearing aids -- only audiologists and physicians will be able to prescribe personal hearing aids; and the review said that currently dispensing audiologists should be permitted to continue to dispense, ie, grandfathered.

What were they not getting, in the review's analysis? They are not getting diagnosis; they are not being permitted to dispense hearing aids everywhere; and they are not getting a prohibition on testing by hearing aid dealers. I would just like to remind you that this was the review's analysis of what the profession was getting or not getting from its recommendations. As we go through these I think you will see that most professions are getting some things and not getting other things. This reflects the balance that was struck.

Then the final subtitle on this page, "Changes in Bills," we added to set out in very summary form any major differences between the bills you have before you and the review recommendations. So you see here that there is no change in what they are getting, although in fact this issue of grandfathering of dispensing audiologists is, from the viewpoint of this legislation, really a non-issue. What are they not getting? Because of the way the title protections have been redrafted, they are not getting the benefit of title protection outside the provision of health care services.

It is 3:10. I am sort of in your hands and in the hands of the Chair, but it might be worth while to go through these individually to give you a chance to ask any questions. Judging from the questions you have had so far, it might be useful to focus on getting and not getting and changes in the bills. Would that be useful?

Turning next to speech-language pathology, which is not alphabetical, but as you know, it is clustered in one bill with audiology.


Mr J. Wilson: Could I ask a question on audiology?

The Chair: Sure. Perhaps we will do it that way. At the end of each one we will just see if there is a question and then move on.

Mr J. Wilson: They can prescribe hearing aids. What is the act of "dispensing"?

Ms Bohnen: Dispensing a hearing aid is what a hearing aid dispenser does when he or she sells to a customer the actual hearing aid.

Mr J. Wilson: That is what I thought.

Ms Bohnen: It may also include testing the person's hearing so that the appropriate hearing aid can be dispensed.

Mr J. Wilson: If I understand them correctly, we are getting letters from constituents complaining that they do not want to be forced to get their hearing aids just from doctors. They want to be able to get them from other practitioners.

Ms Bohnen: I am aware of several different types of letters you may be getting on this issue. Some letters may be saying, "We're concerned about only being able to go to an audiologist." I have not heard too many people say --

Mr J. Wilson: Sorry; I had it backwards.

Ms Bohnen: Under these bills you will be permitted to go to an audiologist or a physician for a prescription. The prescription may be a very generic one. If you need a hearing aid -- this would likely be the case for most physicians -- you would take the generic prescription to a hearing aid dispenser who has the equipment and the knowledge of how to test your hearing so that he or she can then dispense to you the appropriate hearing aid, whereas if you went to an audiologist, the audiologist would be able to test your hearing fully and I am sure would issue you a much more detailed prescription than a physician would.

I said grandfathering of dispensing audiologists was a non-issue. It is an issue in terms of conflicts of interest. In general, in Ontario legislation and regulations we try to prevent setting up a situation where practitioners who prescribe an item can then sell you that very item, because there is an inherent conflict of interest there. This legislation, because it does not control dispensing of hearing aids anyway, does not really address who can dispense. The Ministry of Health has another program, the assistive devices program, which has policies and rules in place to prevent conflicts of interest between prescribers and dispensers. But in this legislation, you will not see any rules about conflicts of interest in dispensing and prescribing in these bills.

Turning to speech-language pathology, again a currently unregulated profession, what are they getting in the review's analysis? They are getting self-regulation. In the review's analysis, what are they not getting? They are not getting the right to perform the diagnostic controlled act.

Changes in bills: The only change is what we saw earlier with the audiologists, the change to the wording of the title protection. Other than that, these bills are the same for them as the review recommended.

Subheading V, "Other Issues:" For your assistance, I believe they will be proposing to you that the title "speech therapist" should be restricted to speech-language pathologists, as well as the title "speech-language pathologist." I do not know how useful all the rest of the material in this book will be, but you may find these sheets useful as you hear interest groups and consumers.

Mr Cordiano: If they are not getting the title "speech therapist," if the committee should decide to grant them that wish, what impact would that have in terms of the way the legislation flows now?

Ms Bohnen: If it were the will of the committee and the will of the government to make that amendment, there would simply be an amendment to the Audiology and Speech-Language Pathology Act adding the title "speech therapist," and then all the other boiler-plate language, abbreviations, translation, etc, would be added by way of an amendment. That is how it would be done.

Mr Cordiano: Would it be appropriate at this time to determine whether that is an appropriate thing to do?

The Chair: No. At this point in time we are being briefed by the ministry. Over the course of the hearings we will have an opportunity to hear from the groups that have an interest in the pieces of legislation, and through those discussions and debate. The time for tabling amendments from the different caucuses, as you know, comes --

Mr Cordiano: No, I was not referring to that. I was wondering whether I should pursue the question of what the ministry's intention would be on each of these items, what direction it is going to be willing to move in. That is what I wanted to establish at this point.

The Chair: You can certainly ask the question of the people who are here, but I believe that would be a more appropriate question for the minister.

Mr Cordiano: Okay, that is fine. I am not sure we see that in the draft amendments.

Ms Bohnen: No, you do not.

The Chair: Just to clarify, for Mr Cordiano and other members, what you see before you is --

Mr Cordiano: The basic ministry position.

The Chair: -- what is in the legislation as it exists. Just to clarify this, what has been identified as another issue are those things which are not presently included in the legislation. Is that correct, Ms Bohnen?

Ms Bohnen: Yes. These are other issues identified by the groups, not by the Ministry of Health. It was just our way of alerting you to what you will be hearing from them when they come in.

Mr Cordiano: Okay, that is fine. We can raise that as an issue.

The Chair: We can have that discussion at the appropriate time.

Ms Bohnen: The next one is "Chiropody and Podiatry." Since there were questions this morning about chiropodists and podiatrists, Ontario currently has a Chiropody Act, which registers both chiropodists and podiatrists. In practice, podiatrists provide limited bone surgery, as I mentioned, on the toes and on the forefoot. There is case law that they do so illegally because they are not authorized to do so by the Chiropody Act and it infringes on the scope of practice of medicine. You may recall that one of the parts of the review's mandate was to work out a certain number of interprofessional issues, which needed some resolution. Here we had a situation where we knew we had these podiatrists doing surgery that the courts were saying was illegal.

What should be done? The review consulted with the government of the day, of course, and the chiropodists and podiatrists. This analysis sets out the compromise that was achieved in full consultation with these groups whereby podiatrists would essentially be phased out of Ontario, but those podiatrists who are currently in practice and who were registered prior to the cutoff date that was selected would be permitted to perform legally the bone surgery which they have been performing illegally to date. The benefit to these podiatrists is clearly lawful. Their illegal practice is made lawful and they are recognized as legitimate providers of this service, but there are not going to be any more of them.

Remember that Ontario and Canada do not educate any podiatrists. We do not have any schools of podiatric medicine. These are people who are going down to the US, essentially, for education. The cutoff date was chosen to protect those Ontario residents who are currently in the schools of podiatric medicine in the US. We did not want these Ontario kids being educated to do something they were not going to be able to be registered for.

I suppose you could say the chiropodists are benefiting by the phase-out of podiatry. Chiropody all the more clearly will be the preferred way of providing foot care services in Ontario, but chiropodists will not be permitted to provide bone surgery.

The podiatrists will eventually be a dwindling group on the Ontario health care scene. The other thing they are not getting in the review's analysis is permission to use the title "doctor," which some of them have been using. They are not permitted to do so under the Chiropody Act.


Mr Beer: One often sees "doctor of podiatry." Does that mean they cannot say that either?

Ms Bohnen: Their governing board does not think they should say that, but I think the main focus has been on policing use just of that short title, "doctor."

Mr Hope: I am just looking at "Scope of Practice" and "disability of the human foot." Do you mean to tell me a nurse, if there were a disease or disability with an elderly person's foot, could not work on the foot?

Ms Bohnen: A nurse can assess a foot and provide nursing services and activities that are authorized controlled acts of nursing on the foot.

Mr Hope: But they could not grab the foot and start massaging it or doing anything to the foot?

Ms Bohnen: Massaging is not a controlled act. By all means, a nurse may massage.

Mr Hope: This is where a lot of the misinformation is happening, and some of the concerns that have been raised with me. England is pumping these people out right and left right now, I guess.

Ms Bohnen: Chiropodists?

Mr Hope: Yes. I have even had some come in my constituency office trying to get their certificates, and I have no control over that. But one of their arguments was that nursing staff are dealing with the disabled, walking in and grabbing an individual and starting to work on it. When you look at this, and I read "disability of the human foot," what does disability mean? I cannot move it, so it is disabled.

Ms Bohnen: But remember that the only things that are really being controlled are the controlled acts. When we get to these sheets about nursing, you will see that nurses have quite a long list of authorized controlled acts, but I certainly am aware of some turf disagreements, to use that phrase, between nursing and chiropody, as to which practitioner is the more appropriate provider of foot care services. That does go on, and I guess will go on.

The Chair: Perhaps you could give an example to Mr Hope about a procedure and care of the foot that anyone could do.

Mr Hope: No, that is fine. I understand what you said. You do not need to give me an example.

Ms Bohnen: Just one other issue: I think you will be hearing from chiropodists who feel they should be authorized to perform the diagnosis controlled act.

Turning next to "Chiropractic," chiropractors are certainly regulated, as you know, under the Drugless Practitioners Act. In the review's analysis, what chiropractors were getting was a limited form of diagnosis and lawful authority to use the title "doctor of chiropractic" and the short title "doctor." Many chiropractors certainly use the title "doctor" in Ontario today, but in fact they are not authorized by law to do so. There was a time within relatively recent history when the College of Physicians and Surgeons tried to prevent chiropractors from using that title, but this legislation will legally authorize them to use the title "doctor."

What are they not getting? The review said they are not getting the authority vis-à-vis laboratory tests. In fact, this legislation does not deal with laboratory tests at all; that is dealt with under the Laboratory and Specimen Collection Centre Licensing Act. Chiropractors, like some other professionals, would have liked this legislation to authorize them to order lab tests, but it just does not deal with that whole issue.

Finally, the review said their scope of practice does not include in it a general reference to the treatment of ill health.

"Changes in Bills:" One of the amendments which was distributed by the minister this morning would authorize chiropractors to manipulate the tailbone through the rectum. That was an additional controlled act they felt was appropriate for their profession, and no other provider group seemed to think it was a very contentious matter, so it seemed an appropriate way, to propose an amendment.

"Other issues:" That just signals the diagnosis issue we have heard some talk about. They are concerned about the ability to diagnose joint problems that have no connection to the spine or the nervous system.

Mr Beer: Do the terms "dysfunction" and "disorder" have a legal definition whereby one knows the difference between either of those two terms and a disease?

Ms Bohnen: They are not defined terms in this legislation. There are many taxonomies of health conditions used by various health professionals which do categorize various entities as either diseases, disorders or dysfunctions, or which seek to define them, but the review did not propose recommendations that would have defined them.

Mr Beer: Under "Other Issues," could we just say "not getting diagnosis of joints of extremities"? Is there a reason you have put in "diagnosis of dysfunctions or disorders of joints of extremities"? A number of people have asked, I am sure, many of us, "What is a `disorder,' a `dysfunction'?" I want to be clear, because those terms are used frequently.

Ms Bohnen: The distinction is very significant to the diagnostic controlled act, which we will come to. As well, I think you should know that in the case of chiropractic, they are only permitted by the bill to diagnose dysfunctions or disorders, not diseases, but their ability to diagnose diseases has not been raised as an issue, to my knowledge.

Turning to "Dental Hygiene," Dental hygienists are regulated under the Health Disciplines Act by the Royal College of Dental Surgeons, but no dental hygienists sit as voting members of the council, nor do they have a scope of practice set out in the act, but the regulations, under the Health Disciplines Act, permit dental hygienists to perform the functions you see listed here under the supervision or direction of a dentist. What dental hygienists are getting first and foremost is their own college, which they sit on. They will be regulating themselves; they are not going to be regulated by dentists any more.

There are also reduced supervision requirements. It might suffice to say that the amount of independence and autonomy a dental hygienist should have is something that I think you will be hearing about from at least one provider group. In the review's analysis, they are getting their own governing body and somewhat reduced supervision requirements. However, they are not getting independent -- that means independent of a dentist -- periodontal scaling and root planing.

The bills have not changed very much, but there has been a semantic clarification of the reduced supervision requirements. Other than that, there is no change.


Mr White: There are a couple of similar situations where a group is given a mandate to practise only under another profession. I believe people who are referred to as psychometrists can only practise under the supervision of a psychologist. Here is the same thing, the dental hygienist, yet that stands distinct from the issues in the criteria for self-regulation, where supposedly there is independent practice and risk of public harm because these people can practise independently.

Ms Bohnen: Dental hygienists do have an independent and autonomous scope of practice, by which I mean that under the bill there are functions they can perform completely independently of a dentist. The controlled acts, however, limit those things which are sufficiently hazardous to control them to begin with, and those acts are triggered by the order of a dentist.

To make this very concrete, a dental hygienist can only perform periodontal scaling and root planing when an order has been made by a dentist. However, they can assess the health of a mouth, participate in public health screening programs, provide teaching about dental hygiene, apply topical fluorides, do a number of things without the necessity of an order or direct supervision by a dentist.

The pattern of practice in Ontario has been, by and large, that dental hygienists only work in dentists' offices. However, one of the opportunities this legislation will be opening the door to is more effective use of dental hygienists in public health programs to provide more dental services more economically.

Mr White: Essentially, in some ways, the issue of independence of practice is a precedent, something which may occur in the future, given this act.

Ms Bohnen: Yes, I think that is correct. The actual degree of independence of many of these practitioners is something that may evolve over time.

Dental technologists: The review recommended that they continue to be regulated; that was certainly a benefit. By the way, I do not think dental technologists are as familiar to most consumers as many of the other groups are. They are the people who work in dental laboratories, designing and fabricating things like crowns, bridges, orthodontic devices and so forth. They do not have any direct patient contact. They fabricate these appliances on the prescription or order of a dentist and then sell the item to the dentist, who then dispenses it to the patient. That is what they do.

Under this legislation, they will continue to be a regulated profession. They have a change in title from "dental technician" to "dental technologist." That change from "technician" to "technologist" is viewed by most groups that have had that kind of terminology as preferable. "Technologist" has better connotations, from their viewpoint, than "technician." But what they were not getting, according to the review's recommendations, was the controlled act or licensed act concerning the preparation or manufacture and design of these dental appliances. They have had a number of things to say about that, as have a number of dental groups.

Dentistry: The main thing the review felt they were getting from this legislation was statutory recognition of the role they play in treating disorders of what we call the "oral-facial complex." That is perhaps a more extensive term than the terminology used in the Health Disciplines Act, which refers to "human tooth, jaw or adjacent structure or tissue." What they are not getting out of this legislation or, one could say, what they are losing in this legislation, is complete control over dental hygienists and the prohibition on denture therapists or denturists from dispensing partial dentures. Right now in Ontario, a denture therapist may only lawfully dispense complete dentures, and the bills propose that denture therapists be permitted to dispense partials as well. Dentists have been opposed to that change.

Mrs Cunningham: I am just looking for information here. I am curious to know what would have made the ministry allow the partials. I say that with the question in mind that the one instance I had around that issue was a woman who came to me who had been diagnosed with a cancer and who at the same time had been given a partial denture that was not appropriate. It had been looked into because of complications. I am wondering if there were certain circumstances or what would have influenced the ministry, given her particular case, to allow that to happen. It is the only instance I have got. What is the background for the inclusion?

Mr Burrows: There was a similar issue back in the 1970s when denturists were first allowed to be recognized as a self-governing profession. We heard many of the same arguments then about total dentures as I think we have had with respect to partial dentures. We have heard nothing in the way of substantial evidence from any party, whether it be dentistry or some other profession, other than anecdotal information.

For example, when we have heard from dentists' representatives saying, "Here's some anecdotal information that there's harm out there," we have asked for comparative data. It is no secret that in every profession there are good performers and bad performers. We have asked them for comparative information in the same kind of experience with respect to dentistry, and that has not been forthcoming. It is one thing to produce a piece of anecdotal information about something that was botched by a nurse, a pharmacist, an optometrist, whatever, and it is quite something else to produce evidence about a substantial trend or data that would objectively prove there is a health hazard here of significance that goes beyond individual competence. To this date, we have heard nothing convincing along those lines.

Ms Haeck: I had the opportunity to meet with a constituent recently who had a concern about a dentist and the fitting of a plate. He actually was very anxious to be able to visit his local denture therapist to get the impressions as well as to have the plates fabricated by the denture therapist. From what I see here, the actual taking of the impression would still be in the hands of the dentist whereas the dispensing of the plate by the denture therapist would be allowed. Is that how it still reads?

Ms Bohnen: I would not say so. Something as specific and non-invasive as taking an impression is not a controlled act. What the denturists will be authorized to do is dispense partial removable as well as complete removable dentures, and all of the ancillary activities that are not otherwise controlled acts go along with that, so they would be able to take their own impressions for that.

Mr Beer: Could you elaborate on what would appear to be a request on the part of dentists to be exempt from quality assurance? Coming at that from one angle, it sounds rather bizarre.

Ms Bohnen: Unfortunately, I cannot. This part of the analysis was performed by the review somewhat before my time on it, so I would not even want to speculate. I did not want to change it as it was their work.

Mr Beer: All right. That helps. We can put that to the Ontario Dental Association when it is here.

Ms Bohnen: Just one other issue I think dentists will be speaking to is that one of the controlled acts is ordering or applying forms of energy that are hazardous. Those forms of energy will be prescribed by regulation under the RHPA. Dentistry would like to see that authority to order or apply such forms of energy in the Dentistry Act rather than dealt with by regulations under the RHPA. They will speak to that.

With regard to denturism, we have already spoken to the main very significant changes. They will be permitted to dispense partial dentures without the order or supervision of a dentist. They also are very pleased with the change of their title from "denture therapist" to "denturist." There is really no change in the bills of any significance.


Dietetics: Dietitians are currently not regulated, so what are they getting? Statutory self-regulation. They are not getting any controlled or licensed acts, nor is nutritional counselling, for example, being restricted to dietitians. I think a couple of issues you may expect to hear from dietitians are that perhaps -- I am not positive but they may be advocating that the title "nutritionist" as well as "dietitian" be restricted to their members. They may also be proposing that parenteral nutrition, which is for people who have health conditions making it impossible for them to eat and digest in the usual way -- I am not sure how nutritional substances are provided. However they are provided, I think they are advocating that prescribing the composition of these nutritional supplements be restricted to dietitians. That was not the review's recommendation.

Mr Beer: Under this, there is the case -- it has been going for a bit -- where a young girl died and the parents were charged, but there was somebody -- I forget whether he is called a herbalist -- who had said she should eat certain kinds of leaves or something. There was a comment made during the case that they could accuse the parents but should something not have happened to this other individual who was making, I guess, a diagnosis and prescribing a certain form of treatment. In terms of dietetics, what would this do to somebody who was recommending to a family that they should follow some set of procedures with the nutrition of their child? Because of the 13 controlled acts, does this provide that there would be a way of legally moving against someone -- I do not mean necessarily in this case -- who was doing that kind of thing?

Ms Bohnen: Nutritional counselling or dietary advice is not restricted in any way. If it is coupled with a diagnosis, then presumably it would be possible to prosecute the individual for performing that controlled act, which, I guess, is the first time we have seen the other side of the issue. So far we have seen the issue from the viewpoint of not impeding practitioners. You have raised it really from the other viewpoint: How can the public be protected from reckless or poorly informed practitioners? But on its own, not coupled with one of the other controlled acts, which, apart from diagnosis, are all pretty invasive, there is nothing in the bill that would prevent the person from doing so.

Mr Beer: This would just bring us back to, when we get to the important meaning of "diagnosis" and "assessment," if you could not demonstrate that somehow there has been a diagnosis, then presumably there are still a number of things that people generally out there can recommend and I suppose, if parents are not thinking enough and follow it, this is not going to control everything.

Ms Bohnen: That is right. It is not going to control everything.

Mr Hope: Just a couple of quick questions. What is this going to do with dietitians about these pop-up shops that are around on this losing-weight category? Is it going to restrict the amount of pop-up shops we have dealing with diets?

Ms Bohnen: No, it will help the public to recognize who is a registered dietitian and a member of the college with prescribed qualifications, quality assurance requirements and so forth. It will help the public recognize that person from someone who does not have those qualifications, but it will not stop what you refer to as pop-up shops.

Mr Hope: Yes. Well, they are popping up all over the place.

Interjection: It is not a form of food.

Mr Hope: No. The other is that I sometimes wonder why they would not be together, nutrition and dieting. Dieting is not stopping eating; dieting is eating the proper foods which are nutrients to your body. Why are they not together?

Ms Bohnen: In the case of the parenteral nutrition, it is my understanding that the review, first of all, believed that these are people who are under the care of a physician and who are receiving all kinds of very sophisticated health care and that the identification of the correct supplement is sufficiently controlled in that way. Second, it is my understanding that these nutritional compounds are basically pre-formulated items which you pull off a shelf. It is not like cooking up a formula from scratch; it is more like a cake mix than baking something from scratch. So there was really no need. The public did not need to be protected in this way.

Mr Hope: Say, for instance, that I go and get my cholesterol checked and I find out my cholesterol level is gone -- which is quite common around here, I guess, with the food -- and I need to talk to somebody to control my cholesterol level. Do I go see a dietitian or a nutritionist? Because this is where the diagnosis part comes into play. You know, I am diagnosing myself as high cholesterol, or I get it checked and I have a high cholesterol --

Ms Bohnen: It would be difficult for you to diagnose yourself with high cholesterol because, remember, only physicians and a few other groups not relevant to this discussion can order the lab tests to determine that you have high cholesterol anyway. If you want to find out if you have high cholesterol through a blood test, you are going to have to go to your physician. Let's say your physician has told you you have this. I would not call it a diagnosis, but I would say if he or she tells you, "You have high cholesterol," either the physician will provide you with the nutritional counselling or will suggest to you that you go to someone else for it. Now, you may want to know, "Should I go to a dietitian or a non-dietitian nutritional counsellor?" You will have to decide that for yourself. But hopefully with the kind of public education that was talked about a little bit this morning -- the public is going to have to be educated so that you can make a wise choice between these two practitioners.

Mr Hope: That is what I am looking for, protection of the public, and this is why I raise these questions. How many people really take the time, being pushed in and out of a doctor's office, to ask those questions? That is why it is important. We talk about two categories. We are still going to have two categories out there. Which one is the credible one for the general public? That is why I raised the question.

Ms Bohnen: Certainly the member of the regulated profession will have certain additional credibility, one would presume. But you can imagine that if there was a proposal to prohibit people other than the dietitians from providing nutritional counselling, you would end up, in rural parts of Ontario in particular, with nobody to go to for nutritional counselling.

Mrs Cunningham: I think one of the key questions, unfortunately or fortunately, would be, who pays? How would you respond to that?

Ms Bohnen: In a variety of settings members of these professions are paid because they are in salaried positions in hospital clinics. Apart from that, for those in private practice some kinds of extended health insurance cover some kinds of practitioners and not others. After that, it is however consumers decide to spend their own dollars.

Massage therapy: pretty short here. What are they getting? Continued self-regulation. They are currently regulated under the Drugless Practitioners Act. There are no controlled acts restricting massage to this profession, nor are they being authorized to perform spinal manipulation, such as is performed by chiropractors and physicians and physios, and there are no significant changes in the bills.


Medical laboratory technology: They are not currently regulated in terms of having their own college. However, the Laboratory and Specimen Collection Centre Licensing Act does in fact regulate to some extent who is employed in licensed laboratories as technologists, technicians and so on. But for the first time they will have their own college and will be self-regulating. However, they are not getting the performance of laboratory tests as a controlled act. That will not be a controlled act.

There are some changes in the bills which are outlined on page 2 of that summary, and one of those included the example the minister gave this morning. They have to be able to collect blood. That is what they do when you go for a blood test. In all probability the blood is being drawn by a lab technologist or someone who is supervised by a lab technologist. As well, there are some non-contentious amendments to their scope of practice.

Medicine: The analysis for medicine which appears on page 3 differentiates between the physicians of the College of Physicians and Surgeons, or the CPSO, and the Ontario Medical Association, because here those two organizations have had very different responses to the proposals.

Fundamentally, and I guess most important, the College of Physicians and Surgeons has been opposed to the new regulatory model. The college believes that the public would be better served if the exclusive scope of practice of medicine were preserved. The OMA has not taken that position and does not have any difficulty with the new regulatory model.

As you might expect, they have quite different responses to some of the proposals. For example, the college would like to see provisions which would make it easier to discipline physicians, and the OMA, needless to say, likes provisions which safeguard members' procedural rights. To some extent their mandates are just in direct conflict and that accounts for the different positions they have taken on some issues.

Just by the way, the regulatory authority over osteopaths is being transferred to the College of Physicians and Surgeons. Currently osteopaths are, theoretically anyway, regulated by their own governing body under the Drugless Practitioners Act. In fact, we have a very small number of practising osteopaths, all of whom are getting on in years and, judging from information made available to us from OHIP, are not in very active practice, many of them. The review concluded that while osteopathy could continue to be a regulated profession, it was not feasible to regulate them as a separate distinct profession and therefore they should be on a special register administered by the College of Physicians and Surgeons.

There are some changes in the bills. For example, the bill recognizes that physicians do not in fact supervise pharmacies, that physicians do not in fact fit and dispense dental prostheses. Conceptually, the way the health care system has traditionally operated is in imagining that physicians do everything, that every other provider group just does a little bit but physicians do everything. For the first time, I think this legislation recognizes that physicians do not do everything.

Finally, in terms of other issues, I think you will be hearing from the College of Physicians and Surgeons that it feels some additional provisions should be added to the procedural code dealing with continuing confidence. Also, later on there will be some recommendations tabled dealing with sexual abuse of patients.

Mr White: Just one small question -- really slightly outside of the scope of this afternoon's endeavour -- on the recommendations of the task force on the sexual abuse of patients, which came up fairly recently: My understanding is that a large number of those physician-patient relationships were of a supportive, counselling nature. I am wondering, with the release of that task force, whether that information could spur any kind of change in terms of regulation, the tremendous issue around harm, obviously. I gather that is controversial. You can set it aside for now.

Ms Bohnen: Right. The report you have referred to was a preliminary report, and after it was released there was much feedback provided to the task force. It is my understanding that the task force and the college are scheduled somewhat towards the end of these hearings, and I think you will hear proposals for additional amendments to the bills. The minister has already proposed in the package that was distributed today a couple of amendments that respond to some concerns, such as permitting a complainant to remain in the room during a hearing that is otherwise closed to the public.

The Chair: Any further questions? Please continue.

Ms Bohnen: Midwifery is, as you know, obtaining recognition, legislative authority that midwives are appropriate health care providers for Ontario, as well as statutory self-regulation. Most of the other groups that are not currently self-regulating have nevertheless been recognized as players in Ontario's official health care system. That has not been the case for midwives. So they are getting statutory recognition as well as self-regulation.

The recommendations the review made in terms of their scope of practice and controlled acts arose largely from the recommendations of the Task Force on the Implementation of Midwifery in Ontario. The small changes to the bill that you see here I think are items that resulted from consideration of the issues since that task force made its report, and these have benefited from the deliberations of the interim regulatory council on midwifery, which has been in operation I guess going on two years now. I do not believe that these are contentious changes to their bill.

Moving on to nursing, there are a number of nursing organizations which have different views on this legislation. In the review's analysis, what nursing was getting from the bill was, first of all, for the first time, at least a descriptive definition of the scope of practice of nursing. Even though we have had legislation in Ontario that regulates nursing for I guess the better part of the century, we have never had a statutory description of what it is that nurses do.

Second, the title "nurse" is being protected for the first time. Although the titles "registered nurse" and "registered nursing assistant" are currently protected, the bare title "nurse" has not been protected in Ontario.

Nurses have a fairly long list of controlled acts, although most of those acts are triggered by the order of another practitioner, a point I will come back to in a minute.

They are also getting a title change from "registered nursing assistant" to "registered practical nurse."

What are they not getting? The registered nursing assistant, to become registered practical nurses, are not getting a separate college. They will continue to be clustered with registered nurses under the College of Nurses.

Nurses are not being authorized to perform diagnosis, nor is the practice of midwifery being restricted to nurses, which is something at least certain nursing organizations wanted.

Changes in the bills: One of the key changes will be the ability given to the College of Nurses to, by regulation, prescribe which controlled acts may be ordered by a nurse. Usually, the order must be made by a practitioner who functions at a higher level. For example, a dentist makes an order that may be carried out by a dental hygienist. Much of the time, it is a physician who makes an order which may be carried out by a nurse, but this legislation will enable the College of Nurses to specify what kinds of controlled acts may in fact be authorized by a nurse and then carried out by a nurse.

Some other issues which you see flagged are not very complicated. Some groups feel that the exception for the titles "dental nursing" and "Christian Science nurse" should be eliminated.


Mr Hope: This is where some of the problems dealing with emergency rooms come up with the controlled acts.

Ms Bohnen: Let's come back to what it means, then, to have to have an order, because I think what some groups, such as some nursing groups, are saying is: "Look, we have to be able to respond to such and such situation. We can't hang around waiting for a physician to examine a patient and make an order."

Mr Hope: Before you go on, are you talking about standing orders in emergency rooms or what?

Ms Bohnen: That was one of the things I was going speak to you about.

Mr Hope: Okay. When you said orders, I just wanted to find out.

Ms Bohnen: We know that the way emergency rooms, intensive care units, the way hospitals in general operate, is that there are many standing orders or routines so that the nurse knows that in such and such situation she has the authority to perform a particular procedure so the nurse does not have to wait for the patient to be examined by a physician and for a patient-specific order to be made.

The same thing applies, by the way, for dental hygienists, who know that, given a certain fact situation, she may go on to scale the patient's teeth. She does not always have to wait for the dentist to examine the patient first. Does that respond to the concern you were raising?

Mr Hope: They talk about a heart attack patient coming in and using their normal skills and applying stuff right away and attending to the patient, to care for the patient. Then under the controlled acts, and hearing what you just told me and reading the controlled acts, I think it is a matter of public understanding of what is taking place here. There is not a circle of communication. The communication seems to be bouncing one way and not back the other way.

Ms Bohnen: I think you will be hearing from several nursing groups. I think the College of Nurses and the Registered Nurses' Association of Ontario understand the nurses will continue to practise more or less as they practise now. They do not wait for a physician order before they provide care within their expertise. I have no doubt that you are hearing from other groups who are saying otherwise, but I can tell that these bills do not require a patient-specific order in every case. What they require, though, are some guidelines, and remember, these may either be standing orders, patient-specific orders or regulations made by the College of Nurses, which say that, "In such-and-such situation, this is how you are supposed to carry on." Remember as well that there is an exception from the controlled acts anyway for first aid and emergency care.

Mr Hope: Okay, similarly, using a child with asthma and a heart attack patient coming in, when they looked under the health professions regulations, they said they are not able to do anything because they have not had an order from a doctor. Looking at rural Ontario, we do not have doctors sitting right in the hospitals 24 hours a day. We are lucky if we can get them in there eight hours a day. They depend on the beeper or depend on phone services or something like this in order to get these orders, and this is where a lot of concerns from rural areas come from. They went through all this schooling, have had their degree and 20 years of service or whatever, and they are feeling that their ability to move and ability to service the public are being taken away with this regulation.

That is why I keep referring back to these pieces of paper that are in front of me. What is written here, what you are telling me and what they are telling me -- I was in the middle of about 150 nurses, so it was not a friendly place to be at, especially being on the government side. But I listen to the concerns they have, and this is where I am trying to make sure that the understanding -- and this is why I brought up earlier about the transition period.

I understand standing orders. Are we losing sight of the standing orders that are currently --

Ms Bohnen: No, we are not.

Mr Hope: Or are the standing orders always going to be a part of it? They could still continue to practise what they have always been doing, treating the patient as soon as he is diagnosed. "Doc, here I am diagnosed, assessed as a heart attack patient," and bang, you can treat him.

Ms Bohnen: Absolutely. They can carry on.

Mr Hope: Okay.

Ms Bohnen: Occupational therapy: Again, they are getting statutory self-regulation but not any controlled act. Not much change in the bills other than what I have mentioned before about title protection. Another issue for them is the ability to diagnose, which they are not getting in these bills.

The next profession, ophthalmic dispensing: What are they getting? First of all, a change in title from "ophthalmic dispenser" to "optician." Eye care is a complicated area because many members of the public, and some of us, have trouble distinguishing between ophthalmologists, optometrists and opticians. Opticians are the people who fit and dispense glasses and contact lenses. Optometrists are the people who assess vision and also dispense eye glasses and contact lenses. Ophthalmologists are physicians who have specialized in eyes. So we have eye doctors, optometrists and opticians. They will continue to be regulated and they will have a controlled act dealing with dispensing of eye glasses, contact lenses and so forth.

There is no significant change in the bill. The main issue I think you will be hearing about comes from the fact that the bills and the review do not define all of the elements of dispensing eye glasses. There is, in contention, the issue of whether an optician should have to perform all or nearly all of the various functions that go into dispensing eye glasses or whether some of those functions can be performed by people who are not registered opticians, provided the final product is okayed by an optician. I think you will be hearing from an industry group as well as from the opticians about this issue.

Optometrists are currently regulated under the Health Disciplines Act. In the review's analysis, what they were getting was essentially the status quo, including the authority to make a limited form of diagnosis. In fact, I think what you will be hearing from them is that they are quite dissatisfied with their scope of practice as recommended by the review and with the limitations on their ability to diagnose. In addition, they would like to see specific authority to order and prescribe forms of energy and to perform allergy tests and procedures in the cornea. But these are, to them, less important issues than the issue of the breadth of their scope of practice and the breadth of their ability to diagnose.

Ms Haeck: I have also, as many of us have, met with various specialties in my constituency and I have met with some optometrists in my riding. What they portrayed for me as a scenario was that if I went to them and needed to be assessed for glasses, but during that, they have a whole range of devices to check for glaucoma and other things, they in fact could not tell me that particular fact, that I might need to be treated for glaucoma. They would have to send me to an ophthalmologist in order to have that diagnosis delivered to me.

Looking at this, you are under the controlled acts in a very specific fashion. I would judge that possibly that is not totally so, but I would like you to expand on that.

Ms Bohnen: Optometrists play a very important role in screening people for eye diseases like glaucoma for which medical treatment is necessary. Currently in Ontario, under the Health Disciplines Act, optometrists cannot use drugs for therapeutic purposes, they cannot do eye surgery and so forth. So what they do is provide this very valuable screening and then refer the patient to a physician, because you have to be treated by a physician for glaucoma and other eye diseases. That will not change under these bills, but what the review concluded was that an assessment and screening function, optometrists believe, is a diagnostic function and the optometrists would like the statute to recognize that they do diagnose glaucoma. The review said: "No, you don't diagnose glaucoma. You recognize the signs of glaucoma and refer the patient to a physician, which is the only place the patient can get the necessary treatment."


Ms Haeck: What the two optometrists sitting across the desk from me indicated was that they could not tell the patient that he had glaucoma. They would have to say: "You have a problem but I can't tell you what it is. I am going to have to send you to an ophthalmologist." Somewhere six months hence, you have this appointment with the ophthalmologist, and you are living under this cloud for six months, not knowing what particular problem you may have and obviously not receiving treatment.

Ms Bohnen: One of the elements of the controlled act of diagnosis, which we will come to shortly, does refer to it being a statement of a very conclusive nature: "Look, I have measured the pressure in your eye" -- that is how they do it; it is a device that measures eye pressure -- "and the pressure is up. That is a sign of glaucoma. You need to go to a physician." If the wait is six months, the patient has a problem, not because he has to wait on tenterhooks waiting for the diagnosis, but because he is going to have to go untreated for six months. He cannot get treatment from an optometrist for glaucoma.

I think it comes down to the difficult issue that we have been talking about already today: What is the extent of this controlled act and how in practice, using some common sense here, is it really going to play out?

Mr Beer: Just to underline what Ms Haeck has put forward in her questions, because I think we have all had visits over the last few weeks from optometrists, and we will want to talk to them about this when they come: There really is a concern around this assessment-diagnostic. There clearly is also a problem in the relationship with ophthalmologists and to what extent the ophthalmologists are dictating the optometrists' scope of practice. I just would want at this point, for the record, to put that out, because I think as a committee we are going to have to get some better sense of just how those two groups are going to be able to work and live in some harmony with this.

This is why I come back to communicating what is meant by being able to assess, because the glaucoma example is the one that we were all provided with. I suppose my reaction to that is, what would you expect in a reasonable situation? An optometrist would say, "Look, I think what you've got here is glaucoma, for which you need to go and see a certain kind of person." But there seem to be problems -- and it may be more than just optometrists -- around, "Have I made an assessment or have I made a diagnosis?" I appreciate there is perhaps some meaning for that, but this is one that we have all, I suspect, received from the optometrists. We are going to have to get a clearer sense on that, because clearly as a group, they feel they have lost something in this. I understand you are saying no, they have not, but that is what they are telling us.

Ms Bohnen: I know.

Medical radiation technology: They are currently regulated under the Radiological Technicians Act, so they too are getting a title change from "technician" to "technologist."

The Chair: I do not think we have that in the book. Pharmacy is next.

Mr Bohnen: Oh, I am sorry. I do not know how I did that. I flipped ahead. I am sorry.

The Chair: It is further along.

Ms Bohnen: We will flip back to pharmacy, okay?

Pharmacists of course are regulated under the Health Disciplines Act. There is a change to their scope of practice. It emphasizes the counselling component of pharmacy. The review recommended that existing restrictions on the ownership of shares in corporations that operate a pharmacy be removed. That was changed in the bills introduced by the previous government and this government, and so those restrictions on the ownership of shares have been restored. Other than that, there is no significant change.

Physiotherapy, currently regulated under the Drugless Practitioners Act: Under the regulations under that act which regulate physiotherapists, with a few exceptions, physiotherapists are not permitted to treat patients except on a prescription from a physician, so they do not have primary contact with patients; you always have to go to a physician first. That restriction has been eliminated from the bill, so that henceforth patients would be able to go directly to a physiotherapist. They would not have to go to a physician first. They are not getting authority, in the bill, to perform diagnosis.

There is a title issue here. The title recommended for protection by the review was "physiotherapist." The profession would like to see the title "physical therapist" protected as well, and I believe they may be advocating some additional invasive procedures. Included in the package of amendments the minister brought with her today was one that would permit them to perform tracheal suctioning, which is something physiotherapists currently do.

Ms Haeck: Is the performing of that particular act, tracheal suctioning, something that initially may have been ordered by a physician and is just a continuation of that, or is this something they are able to assess on their own?

Ms Bohnen: Our advice was that this was something they were able to assess on their own. I think it is provided both in hospitals and in community settings with disabled people. With the proposal you saw they would do it on their own. There would not necessarily have been a physician's order to begin with, although we are talking about sick people here or people who were once sick, so there will have been a physician involved in any case.

Psychology: Psychologists are currently regulated under the Psychologists Registration Act. Again, like nursing, it is an act that only provides the benefit of title protection to members of the profession. No service is currently restricted to psychologists in Ontario.

Under the bills, they would be specifically authorized to use the title "doctor." They have been authorized to perform the controlled act of diagnosis within the psychological arena, but they have not been given an authorized act to perform psychological testing, for example. The performance of psychological testing is widely done by psychometrists. A diagnosis based on the outcome of that testing would be restricted to psychologists, however.

As I understand it, the main issue for psychologists is the scope of the title protection for members of that profession, including protection of the words "psychology," "psychological" as well as "psychologist."

Medical radiation technologist, which I had skipped to before: I do not think there is anything of too contentious a nature here. In the amendments the minister brought with her today, she has proposed that their scope of practice be amended to permit the minister to add the diagnostic use of other forms of energy. For example, the review did not recommend that regulation of ultrasound practitioners be included in this package. If at some point in the future it is decided that ultrasound operators or some other kind of technologist who utilizes the form of energy should be regulated, it might be that they could be clustered with these radiation technologists.

Finally, the respiratory therapists, who are not currently regulated, are getting their own college. There is no change to the bills from what was recommended for them by the Health Professions Legislation Review. Now we have finished with this.

The Chair: If I may interrupt, the time is now 20 minutes past 4. The next sections you are getting into, which deal with the issues you have identified under section L, could take some time. If it is the wish of the committee, we can decide how late we want to go today and then schedule tomorrow. The way our schedule is looking, we can have our lunch break from 11:30 till 1:30 and then have the ministry continue the presentation from 1:30 till 2:30, when the public is going to be able to continue presentations.

Mr Beer: I think these are really important and I am already 20 minutes late for something else. If it is possible to do this at a time that would be more acceptable for everyone, I think we really do want to get our teeth into this section. It may not be the time that is suggested, but I would certainly appreciate another time this week if we could.

Ms Bohnen: I apologize for running so late with my material.

Mr Beer: No, not at all; it has been very helpful. I just think dealing with these at the end of the day -- if we can have it when we are fresh --

The Chair: There will be opportunities over the course of the next few weeks when we find adjustments in the schedule, or if we want to invite the ministry to get into some of these issues following discussions with the deputants, if there have been cancellations, when we can try to set aside some time for those discussions. That is something the whips might want to discuss. We can attempt to do that.

Shall we adjourn for today, reconvene tomorrow at 10 o'clock and ask the ministry to continue from 1:30 to 2:30, starting at section L? Is that agreed? Any discussion? No? We stand adjourned until 10 o'clock tomorrow morning. Thank you all.

The committee adjourned at 1623.