Overview of Bill 171: The Health Systems Improvements Act, 2007

By Sharan Basran

The Ontario Government recently enacted Bill 171, also known as The Health Systems Improvements Act (the “Act”). The Government has stated that the purpose of Bill 171 is to “...make the health care system more responsive to the needs of Ontarians” by promoting accountability and promoting public health. It remains to be seen whether these stated purposes are achieved by the Act, the contents of which we review below.

The Act is an omnibus piece of legislation which addresses a wide range of issues in the health care system including amendments to the regulatory system for health care professionals, the addition of four new regulated professions, the creation of a new public health agency, and important changes to the management of infectious diseases. Bill 171 is divided into schedules, each of which deals with different pieces of legislation and associated amendments.

Some of the significant highlights of Bill 171 are as follows:

The Ambulance Act

• The Bill amends the Ambulance Act and introduces a new ambulance system for the transfer of critical care patients between facilities, that integrates both air and land transportation across the province.

The Regulated Health Professions Act (RHPA)

The Act makes a number of important changes to the Regulated Health Professions Act, including:

• There are changes to the complaints and reporting process at Colleges. The functions of multiple committees have been merged into a single Inquiries, Complaints, and Reports Committee (ICR). This new Committee has replaced the former Complaints Committee, and will also take over some functions which formerly belonged to the Executive Committee and Board of Inquiry. The ICR will consider complaints, reports made by the Registrar, and inquiries into the capacity of a Member.
• There are new rules respecting the publication of information respecting health care professionals. Colleges are now required to publish a broader range of information in a more accessible form. The Act mandates that certain information not only be available on the public register but also on College websites. This includes general practice information and restrictions. Further, all matters referred to the Discipline Committee and the results of every disciplinary and incapacity proceeding, including a synopsis of the decision must also be posted on the website. Colleges are required to post decision summaries on the website.
• Findings of malpractice and professional negligence, as well as a guilty finding of a criminal offence where the offence is considered to relate to the suitability of the Member to practice, must also be published.
• As well, Colleges now have the discretion to confirm whether a Member is under investigation in the case where the public may be at risk.
• There are new limitations on what information Colleges may disclose to the public about a member. The Registrar has the discretion not to publicize information, where it believes that disclosure may jeopardize the safety of an individual. In addition, a Registrar is prohibited from disclosing the personal health information of a Member. The Registrar is also prohibited from posting the result and summary of a decision where the penalty was only a reprimand or a fine, or if more than six years have passed since the information was prepared or last updated.
• The Act allows health care professionals to apply to the relevant committee to remove the information from public access if the information is no longer relevant to the member’s suitability to practice.
• Bill 171 also expands on the mandatory reporting obligations by facilities under section 85.2, which previously only required reporting allegations of sexual abuse of a patient, to now also encompass cases where a Member is incompetent or incapacitated.

Four New Regulated Professions

• The Act adds four new health care professions as subject to regulation under the RHPA. The professions of naturopathy, kinesiology, homeopathy, and psychotherapy each have their own specific Acts that creates a new College and regulatory system.

Chase McEachern Act (Heart Defibrillator Civil Liability), 2007

• This was initially a private member’s bill, introduced in order to respond to the ever growing use of defribrillators (also known as AEDs) in public places. The Act essentially protects individuals and health care professionals from liability for damages that may occur in relation to their use of an AED to save a life during an emergency, unless damages are caused by gross negligence. It also protects owners and occupiers of premises on which an AED is installed.

New Physician Billing Review Process

• Bill 171 amends the Health Insurance Act and sets up a new medical audit process to review billing by physicians under OHIP. The Act endeavours to establish a process to resolve disputes respecting billing, and employs four phases to do so.
• The first phase is more informal and takes a conciliatory approach to resolve any differences between the General Manager of OHIP and the physician. If a phase does not resolve the issue, then a physician may proceed through progressive phases which increasingly move towards a formal and adjudicative model.
• The first phase involves education and support for physician to ensure correct billing procedures. If further intervention is required, the second means employed is the OHIP Payment Review Program and involves an audit of claims. If the matter remains unresolved after this review, the Act creates a new Physician Review Board to conduct formal hearings and adjudicate disputes. The final phase is a right of appeal, which may be exercised by OHIP or the physician.

Health Promotion and Protection Act

There are two significant amendments made to the Health Promotion and Protection Act:

a. Creation of Ontario Agency for Health Protection and Promotion

• The Act seeks to promote public health through the establishment of the Ontario Agency for Health Protection and Promotion, described as a specialized centre for public health excellence that would provide research, scientific and technical advice and support to the health care system in the areas of infectious disease, and infection control prevention.
• The Agency would develop knowledge and research on infectious diseases, health promotion, emergency preparedness, public health research, surveillance, epidemiology, similar to that provided by the Center for Disease Control and Prevention in the United States.
• The Agency, an arm’s length agency independent from government and other players was criticized by Justice Campbell, as potentially exacerbating the divided authority and accountability that proved to be a significant obstacle in dealing with the SARS outbreak. In particular, Justice Campbell stated that the SARS response was weakened by the fact that there was no one clearly in charge and there was a lack of clarity surrounding the roles of various positions. He did not agree with the creation of another independent or autonomous body since SARS had demonstrated the dangers of uncoordinated entities. Instead, the Justice recommended an agency which would be an adjunct to the Chief Medical Officer of Health, rather than a separate autonomous entity. The new Agency would appear to be inconsistent with these insightful comments.

b. New Powers in event of Outbreak

• Bill 171 also creates new emergency powers to respond to an outbreak of a communicable diseases. These powers are conferred on both the Ministry and the Chief Medical Officer of Health (CMOH). These powers are exercised in respect of hospitals, health boards, and health custodians, such that legally binding orders may now be made against these third parties to respond to outbreaks.
• Medical Officers are granted broad powers to make orders against health facilities and hospitals to deal with communicable disease outbreaks at the institution. In particular, a medical officer of health is granted the power to “...make an order requiring a public hospital or an institution to take any actions specified in the order for the purposes of monitoring, investigating, and responding to an outbreak of communicable diseases at the hospital or institution.”
• In addition, Provincial Public Health Powers have been significantly expanded so that the Chief Medical Officer of Health can issue binding directives or orders to respond to a risk to the public’s health. The Act confers on the CMOH, where a situation exists that may constitute a risk to the health of any person, to investigate the situation and “take such action as he or she considers appropriate to prevent, eliminate or decrease the risk.” This includes the following specific powers:
  
  • The CMOH now has the power to exercise the powers of boards of health and to require a board of health to produce information. A CMOH may even apply to a judge of the Superior Court to obtain a court order against a board of health to take such action to respond to the presented risk.
  • If there exists an immediate and serious risk to the health, the Chief Medical Officer of Health may order health care providers to provide information required to help the CMOH investigate and manage risks to human health, including personal health information.
  • The legislation grants the CMOH the authority to issue directives against health care providers or a health care entity respecting precautions and procedures to be followed in the event there is an immediate risk to the health of any person.
  • Significantly, the Government adopted the precautionary principle when dealing with infectious disease outbreaks. In particular, where there is a risk of an infectious or communicable disease outbreak, the chief medical officer is required to consider the precautionary principle in issuing directives related to worker health and safety in the use of any protective clothing, equipment, or device.