by Written on behalf of Wise Health Law January 21, 2019 4 min read

In a recent decision of the Discipline Committee (DC) of the College of Optometrists of Ontario (COO) allegations of professional misconduct were dealt with relating to the improper delegation of services.

What Happened?

The complainant/patient (CP) attended the member's clinic for the first time in August of 2016. He wore eyeglasses and had undergone many eye examinations in the past. His usual optometrist had moved away. The CP was suffering from headaches and felt he may need a new eyeglass prescription. He made an appointment to see the optometrist member. When he arrived, he was greeted by a man he assumed was the member. The man did not introduce himself and simply said he would be conducting the examination. The man was, in fact, an optician and not an optometrist. The CP was told his tests revealed a significant change in his prescription. The member was present at the clinic that day but had been called to take a personal call dealing with a death in the family. He had intended to participate in the CP’s exam but was unable to because of the call. He did review the CP's health record prior to the prescription being sent to be fulfilled. He did not, however, at any time see the CP.

New Prescription Issued

The CP relied on the new prescription to order lenses for his eyeglass and sunglasses frames. The insurance submission and the prescription were sent in the name of the member. A short while later, the CP came to pick up his glasses but only the sunglasses were ready. He tried them on but found that his vision was poor. He was told by the optician, who the CP still assumed was an optometrist, that he needed time to adjust to the new prescription. When the CP later returned to pick up his eyeglasses, he had, by then, made his complaint and had confirmed that he had been tested by the optician. The member eventually offered a refund and agreed to test the CP's eyes again personally. The second test provided different results.

Optician’s Prescription

Rx Sph Cyl Axis Add Prism
OD +2.00 -2.00 89 +2.25 -
OS +1.75 -1.75 87 +2.25 -

Optometrists Prescription

Rx Sph Cyl Axis Add Prism
OD +2.00 -2.00 85 +2.00 -
OS +1.50 -1.00 85 +2.00 -
The CP did not purchase replacement lenses through the clinic. The College ultimately investigated the CP's complaint and did so undercover. The investigator attended the clinic and asked for an eye exam with the optician by name. He was told that the optician did not perform eye exams and was offered an appointment with the member.

Professional Misconduct Issues

Delegation

The Regulated Health Professions Act (RHPA) regulates “controlled acts” by health professionals. In s. 27(2) two such acts are the communication of a diagnosis (item 1) and the prescription of eyeglasses (item 9). The section also prohibits such controlled acts being done by an unauthorized person. An optometrist is the health professional who is allowed to perform the two relevant controlled acts. Controlled acts may, however, be delegated under s. 28 of the RHPA but only in accordance with the Regulations made under the Optometry Act (OA). The OA and its Regulations are silent on the subject. However, the College has its own standards on the subject known as the Optometric Practice Reference-Standards of Practice (OPR). Delegation requires supervision which means being physically present to allow immediate intervention if needed. The responsibility still ultimately remains with the optometrist. It may only occur after a relationship is established with the patient which includes an interview, an assessment, recommendations (if necessary), and informed consent about any proposed investigations or therapy. The actual delegation requires a specific and documented informed consent.

Findings

The member ultimately pleaded guilty to this act of professional misconduct and the DC agreed that it was supportable based upon the plea and the agreed statement of facts.

Joint Submissions on Sanctions

The College and the member had agreed on the appropriate sanctions. They included a reprimand, a three-week suspension, completion of an ethics program, a series of thousand-word essays, further unannounced inspections of his practice and $20,000.00 in costs payable to the College.

Test for Accepting a Joint Submission

The DC accepted the joint submission based on the test set out in the Supreme Court of Canada’s (SCC) decision in R. v. Anthony-Cook. Rejection may only occur if the result would bring the administration of the discipline process into disrepute or would be otherwise contrary to the public interest. That would be a disposition that was so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the system. The purpose of a discipline order includes general deterrence, specific deterrence, remediation, and the protection of the public. All of these purposes had been considered and addressed in the accepted joint submission. If you are a regulated health professional facing a complaint, investigation, or disciplinary hearing at your College, contact the trusted and respected health lawyers at Wise Health Law. We rely on our significant experience before discipline panels of various regulatory Colleges to provide our clients with exceptional guidance and representation through the often-overwhelming discipline process. We provide our clients with expert legal guidance and have been recognized for our knowledge and excellent work by regulatory colleges, professional associations, and other lawyers. To find out more about how we can help, contact us online, or at 416-915-4234 for a consultation.


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