Canada: The Times They Are A-Changin’: New Conflict Of Interest Provisions Governing Optometrists

Last Updated: December 29 2014
Article by Lindsay Kantor

For years, opticians and optometrists have been advocating for greater flexibility with respect to their relationships with their counterparts on the other side of the glass. Unfortunately, their hands have historically been tied in this regard, primarily by the regulations governing optometrists.

After years of advocating, at long last, the new professional misconduct regulation governing optometrists came into effect on April 15, 2014.1,2 While the College of Optometrists of Ontario has voiced its belief that this regulation heralds "modernized conflict-of-interest provisions", 3 these new provisions may not be as clear, or as far reaching, as both opticians and optometrists may have desired.

It is clear that the requirement that there be separate entrances between an optical dispensary and an optometry office no longer exist. This will certainly benefit both professions and the public, since optometrists and opticians will be able to work together in a more collaborative way. This collaboration, however, is not without its limits. While opticians and optometrists working out of the same area will be able to share personnel for some purposes, such as the collection of fees, the optometrist must pay for the personnel's performance of these tasks. In addition, optometric records must be kept separate for custodianship purposes.

So if the physical walls between optometrists and opticians are starting to come down, what about the more invisible walls, such as those pertaining to financial arrangements? That's where the water gets a little more murky.

Many will be happy to know that the old regulation prohibiting optometrists from working "in association" with opticians no longer exists. An optometrist may now have an ownership interest in an optical dispensary located outside his or her office.4 However, the new regulation expressly states that optometrists cannot "practice [their] profession in a working arrangement with another person". While there are express exceptions to this prohibition, an arrangement with an optician is not one of them.

Do not fret just yet! The new regulation goes on to say that there will be no conflict of interest (i.e., an optometrist can practice in a working arrangement with another individual such as an optician) so long as the optometrist practises (1) as an independent contractor, and (2) pursuant to a written agreement.

This leads to the next obvious question: what does that written agreement need to say? Is it sufficient to expressly say that the optometrist is an independent contractor? No. The title assigned to the position, even if reduced to writing, does not matter in the slightest. Rather, the new regulation sets out a list of provisions that must be included in the agreement (and followed) including, but not limited to the following:

  • The optometrist must control whom he or she may accept as a patient.
  • The optometrist must set the fee charged or collected in respect of any professional service.
  • The optometrist, and his or her staff, must have access to the premises where he or she practises (and where the practice's books and records are kept) at any time—day or night.

If the required provisions are not reduced to writing and/or are not followed, the optometrist will be in breach of the new regulation and could be charged with having committed professional misconduct.

The same does not apply the other way around (i.e., an optometrist can now hire an optician to be his or her employee). It seems then, that what is good for the goose is not necessarily good for the gander after all.

Before leaving you, just to muddy the waters a little more, I will simply remind you that the regulations to the Opticianry Act, 19915 also stipulate that it is an act of professional misconduct for an optician to practise while in a conflict of interest. We have yet to see how the College of Opticians will interpret this provision in light of the recent changes to the optometry conflict of interest provisions.

Confused? Frustrated? You are not alone. While the new regulation certainly assists in modernizing the practices of optometry and opticianry, it is still a far cry from the equal playing field for which opticians have been advocating for years. The new regulation makes it clear that there are many nuances to the ever-expanding realm of optometrist/optician working arrangements and that a failure to strictly abide by these nuances could lead to trouble for all parties involved. Make sure your working arrangements with other professionals are properly executed. Do your research, take your time, and seek legal advice where appropriate.

Originally published by Focus - Ontario Opticians Association Newsletter and Risk Management in Canadian Health Care.

Footnotes

1. http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_940119_e.htm.

2. This article is not meant to be a comprehensive review of the new regulation.

3. http://www.collegeoptom.on.ca/index.php/resources/news/244-guidelines-for-the-new-professional-misconduct-regulation.

4. So long as that interest is disclosed to patients who are referred to that dispensary.

5. S.O. 1991, c. 34.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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