Canada: Proposed Changes Would Lead To The Regulation Of Personal Support Workers, Physician Assistants And Behaviour Analysts In The Province Of Ontario
Health Bulletin

On April 27, 2021 Ontario introduced Bill 283, Advancing Oversight and Planning in Ontario's Health System Act, 2021 ("Bill 283"). As of the date of this bulletin, Bill 283 passed its second reading and has been ordered referred to the Standing Committee on Social Policy.

Bill 283 is comprised of various parts, included among which are four Schedules:

This bulletin will provide a high-level summary of some of the principal matters of each of the Schedules. Further details regarding certain aspects of Schedules 2 and 4 (as identified below) will be the subject of a subsequent bulletin.

I. Schedule 1 – Introduction of COVID-19 Vaccination Reporting Act, 2021

Schedule 1 introduces a new Act, namely, the Covid-19 Vaccination Reporting Act, 2021 (the "Covid Reporting Act"). If enacted, the Covid Reporting Act will require "vaccinators" -- defined to mean any person or entity who/that administers a vaccine to protect against COVID-19 to an individual in Ontario -- to ensure that prescribed information regarding:

i) the individual receiving the vaccine (e.g. individual's name and date of birth);
ii) the vaccine administered (e.g. product name and manufacturer, expiry date); and
iii) the vaccinator (e.g. vaccinator's name and professional designation and licence number),

is disclosed to the Ministry of Health (the "Ministry")¹ in respect of every individual to whom the vaccinator either administers a vaccine or refuses to administer a vaccine.² The Covid Reporting Act would require the Ministry to use and disclose all such information it receives in accordance with the Personal Health Information Protection Act, 2004.³

If passed, the Covid Reporting Act would confer the Minister of Health (the "Minister") with the authority to make directives respecting the form, manner and timing of the disclosures referenced above in paragraphs i), ii) and iii).⁴

II. Schedule 2 – Introduction of Health and Supportive Care Providers Oversight Authority Act, 2021

Schedule 2 introduces another new Act, being the Health and Supportive Care Providers Oversight Authority Act, 2021 (the "PSW Act").

Currently, unlike many other heath professions (e.g. medicine, nursing), PSW is not a regulated profession in the Province of Ontario. If enacted, the PSW Act will establish a new corporation called the Health and Supportive Care Providers Oversight Authority (the "Authority"). The Authority would be responsible for increasing accountability of PSWs through, among other things, the use of a voluntary public registry for PSWs in the Province of Ontario (the "Registry") to identify registrants to members of the public, and provide for "consistency in PSW education, training and standards of practice".⁵

In addition to creating the Authority, the PSW Act sets forth the functions and powers of:

• the Authority;
• the board of directors of the Authority (which is to be comprised of between 8 and 12 members, less than a majority of which will be appointed by the Lieutenant Governor in Council); and
• the Chief Executive Officer of the Authority (being an employee of the Authority who is appointed by its board of directors).

Included in the list of powers conferred on the Authority by the Act, are powers related to complaints, dispute resolution and investigations with respect to registrants of the Authority. Each of these powers will be further detailed in our future bulletin on the PSW Act.

The PSW Act also outlines the powers of the Chief Executive Officer of the Authority, including, for example:

• the power to investigate, mediate or resolve complaints pertaining to registrants;
• the power to appoint investigators to inquire and examine the actions of registrants; and
• the power to refer, in whole or in part, any contraventions by registrants of the prescribed code of ethics to the Discipline Committee of the Authority who may then direct the Chief Executive Officer to revoke, suspend or impose conditions on a registrant.

Further information regarding the Authority's Discipline Committee, together with the other Committees prescribed by the PSW Act (including, for example, its Advisory Committee -- which will be required to include patient/client, professional and educator representation), will be provided in our next bulletin.

In providing background on the PSW Act, the Ministry clarified that the PSW Act "[...] contains only those elements that are necessary to establish the Authority. Further details would be set out in regulations, by-laws and policies following extensive consultation with the system partners."⁶ For example, while the PSW Act expressly provides that applications for registration on the Registry will be made to the Authority, it merely states that such applications will be made in the form and manner required by the Authority and does not specify the specific requirements or criteria for registration.

III. Schedule 3 – Amendments to Medicine Act, 1991

Schedule 3 of Bill 283 provides for the regulation of physician assistants – of which there are approximately 400 currently practising in Ontario.⁷ More specifically, Schedule 3 introduces amendments to the Medicine Act, 1991 (the "Medicine Act") that would recognize a new class of members of the College of Physicians and Surgeons of Ontario ("CPSO") - namely, the class of "physician assistants". The Ministry has indicated that this amendment is aimed to "reflect the role of physician assistants as extensions of physicians" and "improve [physician assistants'] integration within Ontario's health care system and facilitate quality of care and patient safety.⁸

If enacted, the Medicine Act would also be amended to provide that:

• a member of the CPSO who is a physician assistant is not permitted to perform an act under the authority of section 4 of the Medicine Act (being those acts authorized to be performed by other members of the CPSO)⁹ unless: (i) the performance of the act by the member is permitted by the regulations and the member performs the act in accordance with such regulations; and (ii) the act is ordered by a person who is a member of the CPSO (other than a physician assistant) who is authorized to perform the act; and
• a panel of the Discipline Committee of the CPSO shall find that a member of that College who is a physician assistant has committed an act of professional misconduct if the member performs an authorized act in contravention of the above noted restrictions.

IV. Schedule 4 – Psychology and Applied Behaviour Analysis Act, 2021

Schedule 4 would repeal the Psychology Act, 1991 and replace it with a new Act, titled the Psychology and Applied Behaviour Analysis Act, 2021 (the "PABAA"). If enacted, the PABAA would continue the College of Psychologists of Ontario ("CPO") under the name "College of Psychologists and Behaviour Analysts of Ontario" ("CPBAO").¹⁰ This new name reflects the fact that the PABAA would, for the first time, regulate the profession known as "applied behaviour analysis". As part of the transition, individuals who are members of the CPO prior to the PABAA coming into force and effect will be deemed to be registrants of the CPBAO under the PABAA.¹¹

The PABAA details the scopes of practice for psychology and applied behaviour analysis as follows:

• Psychology – being "the assessment of behavioural and mental conditions, the diagnosis of neuropsychological disorders and dysfunctions and psychotic, neurotic and personality disorders and dysfunctions, the prevention and treatment of behavioural and mental disorders and dysfunctions and the maintenance and enhancement of physical, intellectual, emotional, social and interpersonal functioning";¹² and
• Applied Behaviour Analysis – being "the assessment of covert and overt behaviour and its functions through direct observation and measurement, and the design, implementation, delivery and evaluation of interventions derived from the principles of behaviour in order to produce meaningful improvements."¹³

Notably, the current regulatory framework for psychologists will remain unaffected if the PABAA comes into force. However, the PABAA does include provisions which would increase the size of, and amend the composition of the Council of the CPBAO to "enable equitable representation for both professions".¹⁴

Further details regarding the proposed CPBAO, including the profession of applied behaviour analysis, will be included in our upcoming bulletin.

Footnotes

1. "Ministry" is defined by the Covid Reporting Act to mean the "Ministry of the Minister", while "Minister" is defined to mean the Minister of Health or such other Minister as may be assigned responsibility for the administration of the Covid Reporting Act under the Executive Council Act. For the purposes of this bulletin, we have assumed that "Ministry" refers to the Ministry of Health and "Minister" refers to the Minister of Health.

2. Unless the applicable individual has not provided such information to the vaccinator.

3. Subject to any requirements provided in the regulations (of which none of have been introduced at the date of this bulletin).

4. Bill 283 provides that Schedule 1 will come into force on the day Advancing Oversight and Planning in Ontario's Health System Act, 2021 receives Royal Assent.

5. Ministry's Proposed Legislation to Strengthen the Health and Supportive Care Workforce During COVID-19 and Beyond dated April 27, 2021, Ontario Introduces Legislation to Strengthen Health Workforce Accountability and Enhance Data-Driven COVID-19 Response (the "Ministry Backgrounder").

6. Ibid.

7. See the Canadian Association of Physician Assistants /Association canadienne des adjoints au médecin

8. The Ministry Backgrounder.

9. In particular, Section 4 of the Medicine Act provides that, " In the course of engaging in the practice of medicine, a member is authorized, subject to the terms, conditions and limitations imposed on his or her certificate of registration, to perform the following: 1. Communicating a diagnosis identifying a disease or disorder as the cause of a person's symptoms. 2. Performing a procedure on tissue below the dermis, below the surface of a mucous membrane, in or below the surface of the cornea or in or below the surfaces of the teeth. 3. Setting or casting a fracture of a bone or a dislocation of a joint. 4. Moving the joints of the spine beyond a person's usual physiological range of motion using a fast, low amplitude thrust. 5. Administering a substance by injection or inhalation. 6. Putting an instrument, hand or finger, i. beyond the external ear canal, ii. beyond the point in the nasal passages where they normally narrow, iii. beyond the larynx, iv. beyond the opening of the urethra, v. beyond the labia majora, vi. beyond the anal verge, or vii. into an artificial opening into the body. 7. Applying or ordering the application of a prescribed form of energy. 8. Prescribing, dispensing, selling or compounding a drug. 9. Prescribing or dispensing, for vision or eye problems, subnormal vision devices, contact lenses or eye glasses. 10. Prescribing a hearing aid for a hearing impaired person. 11. Managing labour or conducting the delivery of a baby. 12. Allergy challenge testing of a kind in which a positive result is a significant allergic response. 13. Treating, by means of psychotherapy technique delivered through a therapeutic relationship, an individual's serious disorder of thought, cognition, mood, emotional regulation, perception or memory that may seriously impair the individual's judgement, insight, behaviour, communication or social functioning".

10. And L'Ordre des psychologues et des analystes du comportement de l'Ontario in French.

11. Subject to any term, condition, or limitation to which the previous registration was subject.

12. Section 3(1).

13. Section 3(2).

14. The Ministry Backgrounder.

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.