The past several weeks have been a challenging time for everyone. Health professionals have been bombarded with Emergency Orders and other pronouncements that can be confusing and at times seem contradictory.
With the rules and restrictions changing so rapidly, it is advisable to keep an eye on the website, social media feeds, and other communications from your respective regulatory College for your College’s interpretation and position on what you should and should not be doing during the pandemic. While the Emergency Orders and pronouncements apply to a broad spectrum of health professionals, individual Colleges can provide guidance and interpretation about how those orders and pronouncements relate to your specific profession.
But what if you’re still unsure about whether you can provide a particular service to a specific patient/client; or some other aspect of your professional obligations at this uncertain time?
You Can Seek Permission…
Your College is your regulatory authority. It must be respected, and its guidance should be followed.
If you call your College with a question, they may or may not answer it, depending on the circumstances. Document the call carefully, including the date, time, questions asked, and answer received. Do not paraphrase but as much as possible document the actual language used. You should assume that the College is recording your inquiry or at least keeping a documentary record of it.
It is fine to call your College for clarification if you are unsure whether you may or may not be permitted to do something – provided that proposed action is in the future and not an action that you have already taken.
But Seeking Forgiveness is Risky
However, if you call your College to ask about some action that you have already taken, you should be aware that your College’s mandate is to protect the public; and to regulate its members.
Because of that mandate, it is very risky to call your College to tell them about some action you have already taken – and then ask if that action was permissible. The College may respond that it was not something you were permitted to do. Because of the College’s mandate, it cannot just ignore information that you provide, even if you apologize and explain that you did not know the action was not permitted.
In that circumstance, the College can open an investigation into your conduct if what you have done could constitute an act of professional misconduct.
Anything you disclose to your College that gives the College reasonable and probable grounds to believe that you may have committed an act of professional misconduct or are incompetent could give rise to an investigation.
Therefore, if you are unsure about something that has already taken place, it is more advisable to seek legal advice. A lawyer’s duty is only to you. Your communications are confidential, and he or she can help you decide how best to proceed and to understand what if any risk you are facing because of what has occurred.At Wise Health Law, we act only for members of regulated professions, and our loyalty is undivided. We would be pleased to assist you.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).
Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.
In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”.
In the midst of COVID-19, the proceedings of many health colleges, and consequently of the health professionals they regulate, have been in limbo while everyone finds a way forward.
On March 25, 2020, the Ontario government enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the “Act”) to help the process along.
The Act empowers statutory tribunals with more discretion over how proceedings before them are held.