Number 6– March, 2006
| Number 6– March, 2006 |
LHIN Legislation Will Likely Lead to Significant Restructuring of the Health Services Sectorby: Jo-Anne Pickel The government passed Bill 36, the Local Health System Integration Act, 1005 on March 1, 2006. The legislation sets out the framework for the government’s restructuring of the delivery of health services in Ontario. It creates and continues Local Health Integration Networks (LHINs) and outlines the powers that these entities will exercise in relation to health care integrations. The statute also outlines the powers granted to the Minister of Health in respect of this restructuring. Both the LHINs and the Minister are vested with significant powers under the legislation. LHINs are granted the power and mandate to seek opportunities to transfer or merge services, to coordinate interactions and create partnerships (between not-for- profit or for-profit health service providers.) The Minister is granted extensive powers to order health service providers to amalgamate, transfer their operations to other entities, or even to cease operating or wind up their services altogether. The legislation covers a wide range of health service providers including hospitals, certain psychiatric facilities, long term care facilities, community mental health and addiction agencies, community health service providers, community health centres, and other entities prescribed by regulation. Significantly, the legislation either expressly excludes or does not cover other key components of the health system such as doctors, independent health facilities, public health units, dentists, optometrists, labs and certain corporations of health professionals. Bill 36 is a complex piece of legislation, the details of which the Ministry admits it has yet to fully work out. However, organizations representing front line health workers are concerned that, instead of strengthening the public health system and promoting non-profit health care, the legislation will set the stage for further privatization of the health care sector. This article reviews the main changes made to Bill 36 by the Standing Committee on Social Policy (for a more in-depth overview of the Bill, see CHSMC’s guide to Bill 36 - the Local Health System Integration Act, 2005 available online at www.cavalluzzo.com.) Impact on Publicly Funded Health Care and Privatization While the Committee did strengthen the language in the preamble to affirm the government’s commitment to the principles found in the Canada Health Act, to the promotion of the delivery of public health services by not-for-profit organizations, and to continuous quality improvement in health service delivery, it rejected proposals that would have required the Minister and LHINs to taken into account these public interest principles in their decision-making under the Act. In addition, the legislation continues to allow for the increased privatization of health care, for example through the use of competitive bidding processes. The statute continues to provide no safeguards to prevent LHINs from employing a procurement system based on a competitive bidding model such as the one currently used in the home care sector. The possibility that LHINs will use a competitive bidding process when making integration decisions has been of particular concern to front line health professionals who fear that the process will have a negative impact both on the quality of health care and on the practice environment for front line health professionals. In addition, amendments to the legislation that appear to require that non-profit and for-profit organizations be treated equally under the legislation are seriously undercut by exceptions to the statute. Amendments were made to provide the Minister of Health with the power to order the closure or amalgamation of for-profit organizations, as well as not-for-profit organizations. However, many for-profit organization are excluded from the scope of the Act and a number of exceptions were introduced to specify that the Minister cannot order the closure or amalgamation of the majority of for-profit organizations covered by the Act. As a result, the Minister’s power to order closures and amalgamations applies largely to non-profit organizations. The legislation also continues to provide Cabinet with the power to contract out certain non-clinical services from hospitals, although it now provides a deadline of April 1, 2007 for the Cabinet to exercise this power. Participation of Community and Front Line Health Care Workers in LHIN Decision-Making Unions and health care advocacy organizations were somewhat successful in securing amendments that flesh out the legislation’s vague requirement that LHINs “engage the community”, although the practical impact of these changes is far from clear. Bill 36 was amended to include a definition of “community” which includes patients and other individuals in a LHIN’s geographic area, health service providers, and employees in the local health system. The definition does not include unions or other professional associations. The legislation also now sets out general methods by which LHINs may engage the community. These include holding community meetings or focus group meetings or establishing advisory committees. The bill was also amended to require that a LHIN engage certain Aboriginal and French language health planning entities for the geographic area in which it is located. Finally, the legislation retains the requirement that each LHIN establish a health professionals advisory committee. While these amendments do flesh out the requirement that LHINs engage the community, the extent to which they enhance opportunities for democratic input from health service professionals will be limited due to a number of factors. First, the members of the health professionals advisory committee will be appointed by the LHIN itself. Also, the legislation does not explicitly set out the circumstances in which a LHIN must consult the health professionals advisory committee, nor does it clearly specify the parameters of the committees “advisory” role. Notice of Decisions and Right to Make Submissions Amendments to the LHIN legislation will provide members of the public with notice of LHIN integration decisions and 30 days in which to make written submissions regarding the proposed decision that must be considered by the LHIN prior to making its decision. These changes appear to be an improvement over the previous version of the Bill which provided only a right for health service providers who were parties to the decision to request a reconsideration of a decision once it was rendered. While the amendments providing for notice to the public and the opportunity to make submissions are welcome, the legislation provides no right for persons to seek a reconsideration or appeal a decision once an integration decision is rendered. The legislation also provides for notice to the public and an opportunity to make submissions in circumstances where a LHIN reviews proposed voluntary integrations between a health service provider and another entity. However, because the legislation does not require LHIN oversight of all voluntary integrations, not all of these integrations will be subject to the public notice and submissions requirement. Public Accountability and Transparency The Committee did make a number of amendments that will improve the public accountability and transparency of decision-making under the Act; however the practical effect of these amendments remains to be seen. LHIN Board Meetings The legislation retains the direction that, in principle, meetings of LHIN boards of directors and committees are to be open to the public. In addition, the Bill was amended to specify the circumstances in which a LHIN may exclude the public from any part of its meetings. The previous version of the Bill left these circumstances to be decided upon in a Regulation passed by Cabinet. The list of circumstances in which the public may be excluded tracks the circumstances set out in the government’s proposed Transparency in Public Matters Act which will apply to certain public bodies including hospital boards of directors. The specification of the circumstances in which the public may be excluded from meetings appears to make LHIN boards more accountable to the public and to make their decisions more transparent. However, the list of circumstances in which the public may be excluded is long and each item is framed broadly enough to cover a wide range of circumstances. Significantly, the list of circumstances includes when meetings will involve a discussion of matters that the Cabinet prescribes by Regulation, thereby preserving Cabinet’s discretion to add to the already long list of circumstances listed in the legislation. On the positive side, the legislation now requires that, before excluding the public from a meeting, a LHIN must hold a public vote on a motion clearly describing the nature of the matter to be considered at the general reasons why the public is being excluded. Of continued concern is that LHIN Boards of Directors will be appointed by the Minister rather than elected by, and answerable to, the community. Information to Public Amendments to the Bill will improve access to the public to certain documents relating to integrations under the Act. However, as with other changes to the Bill, the impact of the amendments in practice will remain to be seen. The Bill was amended to require the Minister or a LHIN to make available to the public copies of any service accountability agreements entered into between them and a health resource provider. The copies of the agreement are to be made available at the offices of the Ministry or LHIN, as the case may be. This is a welcome change, but it should be noted that the Minister and/or LHIN retains the discretion as to whether to make available to the public copies of compliance directives, notices or orders made under the Act. The Bill was also amended to require that the Minister and each LHIN maintain and publish on their websites documents that the Act does require them to make public. Review of Act The Committee did accept an amendment that would require a comprehensive review of the Act to be launched between three and four years after it is passed. A government committee is required to make recommendations concerning amendments to the Act within a year of the commencement of the review. Conclusion Overall, although the Standing Committee on Social Policy did make small
improvements to the LHIN legislation, the amendments fall short of the
proposals advanced by organizations representing health care workers.
Even once the legislation comes into force, many of the details regarding
its operation in practice will remain to be fleshed out. What is certain
is that the Act will have a profound impact on the way health care is
delivered in the province and therefore also a significant effect on the
work environment for front line health care professionals. Off-Duty Discriminatory Comments Justify Findings of Professional Misconductby: Victoria Reaume and Brian Hanulik The BC Court of Appeal recently decided a case that raised questions about the validity of professional disciplinary proceedings against a teacher in the provincial school system for public statements that he made about homosexuality. In Kempling v. British Columbia College of Teachers, 2005 BCCA 327, Kempling was an experienced teacher and registered clinical counsellor who taught at a secondary school in a relatively small community. At the time of these events, Kempling had been a member of the teaching profession for approximately twenty years, and had no prior history of discipline for professional misconduct. The College proceedings against Kempling concerned an article and several letters to the editor that he wrote in a local newspaper in which he associated homosexuality with immorality, abnormality, perversion and promiscuity. The Panel found that Kempling’s writings were discriminatory and demonstrated that he was not prepared to accommodate the core values of the education system, specifically the value of non-discrimination. As a result, Kempling was found guilty of “conduct unbecoming a member”. In BC, section 4 of the Teaching Profession Act directs that the College of Teachers set standards for the profession. The College has developed a document entitled Standards for the Education, Competence, and Professional Conduct of Educators in British Columbia (available at www.bcct.ca), which provides that members have specified responsibilities both to the public and to the profession generally. Kempling did not attend the first part of the disciplinary proceedings against him, but did attend the penalty phase of the hearing. In recognition of the serious nature of the professional misconduct involved, the panel hearing the case decided to impose a one-month suspension of Kempling’s teaching certificate. Kempling appealed both the finding of professional misconduct and the penalty imposed on him by the Panel, to the Supreme Court of British Columbia on the grounds that the hearing was flawed by procedural unfairness, and that his Charter rights had been infringed. The B.C. Supreme Court dismissed the appeal, which Kempling then appealed to the British Columbia Court of Appeal. The Court of Appeal upheld the lower court’s decision and dismissed the appeal. The Court stated that the conclusion that Kempling’s writings were discriminatory was “unassailable” as the writings contained statements that were based on stereotypical notions of homosexuality and a willingness to judge individuals on the basis of those stereotypes. The Court also confirmed that a teacher may be disciplined by his governing College for off-duty conduct when that conduct negatively impacts the school system or impugns the teacher’s ability to carry out his professional duties. The Court stated that the finding of professional misconduct was reasonable. Furthermore, such a finding “may be justified on the basis that a teacher’s conduct caused harm to the educational system” and did not require a finding that any particular student or parent was harmed. According to the Court, when a teacher makes public statements espousing discriminatory views which are linked to his or her professional position as a teacher, harm to the integrity of the school system will result. In particular, the Court found that the following harm had occurred in this case:
With respect to Kempling’s Charter rights, the Court found no evidence in this case that the College’s decision infringed either his right to freedom of religion under s. 2(a) or his right to equality under s. 15 of the Charter. The Court did find that the one-month suspension of Kempling’s teaching certificate and the curtailment of his right to publish such comments was a violation of his right to free expression under s. 2(b), however, the Court found that the disciplinary action by the College was saved by s. 1 of the Charter as a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”. In so finding, the Court held that Kempling:
This case is a reminder that a professional regulatory body may find one of its members guilty of professional misconduct even if it involves “off duty” conduct. In this case, the impugned conduct involved discriminatory comments made by a teacher in a public newspaper. The College and the Courts reviewing the College’s reasons found that the conduct at issue did not necessarily have to result in harm to any particular student or other individual in order to constitute professional misconduct under the governing statute. Rather, it was found that discriminatory comments about homosexuality made by a practising teacher outside of his classroom cased general harm to the public educational system and affected the integrity of that system. Finally, while a penalty imposed by a professional regulatory body for this type of comment may infringe a teacher’s Charter rights to freedom of speech, this infringement may well be justified. While this particular case arose in British Columbia, teachers should be aware that similar provisions exist here in Ontario. Under Ontario Regulation 437/97 of the Ontario College of Teachers Act, section 1(19) defines “professional misconduct” as specifically including “conduct unbecoming a member”.
Young v. Bella: Limits on Reporting Suspicions of Child Abuseby: Shaun O’Brien According to the Supreme Court of Canada, there is some duty to be reasonable in making a report of child abuse. In a recent decision, Young v. Bella, [2006] S.C.J. No. 2, the Court, while recognizing the important policy behind the quick reporting of suspected child abuse, also found that child abuse reports cannot exclude consideration of the legitimate interests of the person named in the report. This means that suspected abusers who are innocent, including teachers and other professionals working with children, receive some protection from irresponsible reports to child abuse authorities. In Young v. Bella, the Director of Social Work at Memorial University reported a student to the provincial Child Protection Services because of a bizarre misunderstanding over a missing footnote to a term paper. The student, Wanda Young, was taking courses toward her goal of being admitted to the School of Social Work. Her paper, which pertained to “Juvenile Sex Offenders”, attached as an appendix a case study copied from a textbook. The case study was a woman’s “first person” account of being sexually abused as a child, then sexually abusing children in her care as an adult babysitter. The textbook from which the case study was taken was listed in Ms Young’s bibliography; however, the appendix was not footnoted in the body of the text. There was nothing in the body of the appendix to link the experiences it related to Ms Young herself. Ms Young’s professor suspected that the appendix was an autobiographical personal confession. The professor did not raise these concerns with Ms Young, but did take her concerns to the Director of the School of Social Work. The Director of Social Work then sent the appendix from Ms Young’s paper to the provincial Child Protection Services suggesting that it may be appropriate for someone from that office or the RCMP to follow up. Ms Young was subsequently refused admission at the School for Social Work. It took the CPS two years to investigate the matter. When they finally did contact Ms Young, she provided the textbook from which the excerpt had been taken within 24 hours and the entire matter was found to have been baseless. Because of the small social work community in Newfoundland, however, concerns about whether Ms Young was safe to hire hampered her ability to obtain any employment in social work both prior to her meeting with the CPS and for years afterward. In finding that the University was liable for its negligent report to the CPS, the Court stated:
The Court noted that the University was not obliged to conduct its own investigation of the suspected abuse, nor even to have reasonable cause to believe abuse had in fact occurred before making a report, but they were required to have reasonable cause to make a report to the CPS. It was the absence of reasonable cause, even to make a report, which lay at the heart of the University’s negligence. In finding that the University owed a duty to Ms Young, the Court was partly influenced by the University’s position of authority and responsibility in relation to Ms Young’s career. This suggests that whether a duty is owed to a suspected abuser, such as a professional working with children, may depend in part on the relationship between the person reporting the abuse and the suspected abuser. For example, it will be arguably easier for a court to find a duty owed by a employer to an employee than by a parent to a teacher. The University claimed that its actions were protected by a provision of the Newfoundland Child Welfare Act which provided that a no action lies against an informant of suspected child abuse “unless the making of the report is done maliciously or without reasonable cause”. The Court, however, held that “without reasonable cause” in that provision did not require a finding of bad faith. Moreover, the Court found that, on the facts of the case, the University was without reasonable cause in making its report to the CPS. In Ontario, the comparable provision in the Child and Family Services Act (s. 72(1)) reads:
Because the wording in the Ontario statute does not pair “reasonable grounds” with maliciousness, it is even easier to interpret it as not requiring bad faith. In other words, the Supreme Court’s finding that an informant needs reasonable grounds to make a report would also apply in Ontario. While this ruling may protect teachers and others who work with children from baseless speculation, it also means that those who work with children need to exercise caution themselves in reporting suspected child abuse. Again, the Supreme Court found that it is not necessary to have reasonable grounds that abuse in fact occurred, but only reasonable grounds to make the report. This involves a minimum duty to ensure that the suspicions at least relate to the appropriate person. In some situations, it may require raising the concern with the appropriate person to ensure there is no easy and compelling explanation for the suspected abuse. However, where the report is not based entirely on speculation, it is the job of child protection authorities to follow up and conduct a proper investigation. The Constitutional Guarantee Against Unreasonable Search & Seizureby: Philip Abbink and Mia London The statutory regimes that govern regulated health professionals and teachers are created by legislation. The Regulated Health Professions Act (“RHPA”) and the Ontario College of Teachers Act (“OCTA”) provide the professional colleges with the necessary powers to ensure that professional standards are met. Because these professional colleges are created by statute, the Canadian Charter of Rights and Freedoms applies to searches and seizures that are carried out under the legislation that governs the colleges. Two provisions of the Charter are directly relevant:
The legal rights guaranteed by the Charter require that any search or seizure carried out by a professional college must be reasonable. If a search is deemed to be unreasonable, the evidence obtained through the search may be excluded. Courts have stated that evidence collected in the course of a disciplinary proceeding may be excluded pursuant to s.24 of the Charter: see Huerto v. College of Physicians and Surgeons (Sask.) (2001), 211 Sask. R. 200 at ¶ 25. Regulated health professionals and teachers are occasionally subject to criminal proceedings. For a search to be reasonable in the criminal context, it must:
The definition of these criteria may differ, however, depending on the nature of the evidence sought and the premises are being searched: Thomson Newspapers v. Canada, [1990] 1 S.C.R. 425. The criteria will be defined more rigorously as the expectation of privacy in the location increases. Personal searches and searches of dwelling places have the highest expectation of privacy. Legislative Powers of Search and Seizure in Professional Regulation An investigator employed by one of the professional colleges may enter the “place of work of the member or the premises of the member’s employer” when the member is a teacher (see OCTA, s.36(5)) or the “business premises of the member” if the member is covered by the RHPA (see the Health Professions Procedural Code, s.76(2)). Although these powers do not appear to have been judicially considered, they are probably reasonable under the Charter for the following reasons. First, the teaching and health professions are highly regulated. Second, there is a lower expectation of privacy in the workplace and, in particular, with respect to a highly regulated profession. Section 77 of the Health Professions Procedural Code and s.37 of the OCTA are nearly identical. They permit investigators to obtain a search warrant from a justice of the peace where there are reasonable and probable grounds for believing that the member has committed an act of professional misconduct, is incompetent or is incapacitated, and that there is something relevant to the investigation at that location. Because search warrants require the oversight of a justice of the peace, searches conducted pursuant to such warrants are authorized by law. Similar provisions in other provincial legislation have been held to comply with the Charter. See Lambert v. College of Physicians and Surgeons, [1992] S.J. No. 311 (Sask. C.A.) and Mitton v British Columbia (Securities Commission), [2001] B.C.J. No. 665 (B.C.S.C.). As a result, it is likely that the Ontario laws authorizing such searches are also reasonable. The ability of the professional colleges to search is not without limits, however. In particular, there are statutory limitations to the manner of the search. Although investigators may enlist the assistance of others to enter a place by force (Health Professions Procedural Code, s.77(3); OCTA, s.37(3)), searches must be conducted by day unless specified otherwise in the warrant (Health Professions Procedural Code, s.77(2); OCTA, s.37(2)). The investigator must identify himself or herself upon request (Health Professions Procedural Code, s.77(4); OCTA, s.37(4)). These limitations help to ensure that the manner of the search is reasonable. However, the facts of a particular case may provide the opportunity to argue that the manner of search was unreasonable. Some Practical Considerations As a practical matter, professionals should not consent to having any location, documents, or records within their control searched. Nevertheless, they should allow the search to be conducted after expressly stating that they do not consent to the search. In the event that the search is illegal, the argument will need to be made later that the evidence should be excluded. Obstructing an investigator is an offence under both the Health Professions Procedural Code (s.76(3)) and the OCTA (s.36(6)). Obstructing an investigator includes withholding, concealing or destroying anything that is relevant to the investigation. Under no circumstances should members destroy or actively conceal evidence. Material requested by the college during the course of a search should be produced while at the same time immediately voicing an objection to its production. Objections can be made during litigation to the admission of evidence that is inadmissible or illegally obtained. As it is an offence to obstruct an investigator, it is recommended that members to be as cooperative as possible in the first instance.
Update for Professionals Archives | Cavalluzzo website | Human Rights Update We welcome your comments. If you have comments about the newsletter, we would value receiving them, or to unsubscribe to this newsletter, please send a reply e-mail with UNSUBSCRIBE in the subject or send an e-mail to the Editor, Brian Hanulik, at updateforprofessionals@cavalluzzo.com. To add yourself to the newsletter mailing list, please send an email to majordomo@cavalluzzo.com with the word SUBSCRIBE in the subject line. To find out more information about the firm and its lawyers and the scope of our practice generally, visit our web site at www.cavalluzzo.com. If you have specific questions regarding the regulated professions, you may contact Elizabeth McIntyre at 416.964.5501 or at emcintyre@cavalluzzo.com. Providing this information does not constitute individualized legal advice, and does not establish any form of lawyer-client relationship with our firm or with any of our lawyers. Readers should not rely on or take any action based on this information; professional advice should be obtained. While we strive for accuracy, mistakes are possible and there may be errors and omissions. We disclaim any liability for such errors and omissions. Copyright 2005 © Cavalluzzo
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