BC Bill 36: Health Professions and Occupations Act (the "HPOA") received Royal Assent on November 24, 2022. When the new legislation comes into force, it will repeal and replace the current Health Professions Act (the "HPA"). The in-force date for the HPOA is yet to be released. Until then, the HPA continues to operate and regulate the province's health professions.
While the HPOA will impact various aspects of the regulation of health professions in BC, such as the amalgamation process for combining two or more health regulatory colleges, this article specifically focuses on the impact of the HPOA on health profession corporations.
One of the most critical features of the HPOA is the creation of the Office of the Superintendent of Health Profession and Occupation Oversight (the "Superintendent's Office"), which will process investigatory and disciplinary matters independently of regulatory colleges and licensees. Under the current regime, each regulatory college conducts its own disciplinary hearings, which usually remain private unless there is a finding of serious misconduct. With the creation of the Superintendent's Office, all disciplinary hearings will be open to the public, subject to an identity protection order or any other order that may be made under the HPOA. Open disciplinary hearings come with the risk of reputational harm to health profession corporations.
Under the HPA, a health profession corporation's permit may be revoked if, in the course of providing services the corporation, its officers, employees, or agents does anything that, if done by a registrant, would constitute professional misconduct; the corporation ceases to comply with a requirement or conditions for its permit; or the corporation is carrying on business activities that fall outside the scope of its permit. The HPOA adds another ground for disciplinary action: when a health profession corporation is being managed or operated in a manner that, in the opinion of the permit committee, presents an unreasonable risk of harm to the public. The HPOA does not define what constitutes "unreasonable risk of harm", so it is uncertain what circumstances would warrant this finding at this time.
Another change that will be brought by the HPOA is the addition of discrimination as a ground of misconduct. The HPOA defines the term "discrimination" as conduct that is prohibited under the Human Rights Code and that is undertaken in relation to, among other things, the practice of a designated profession or occupation by a regulated health practitioner, including with respect to the provision of health services or the employment of persons in relation to the practice of the designated profession or occupation. Given that one of the grounds on which a health profession corporation permit may be revoked is doing anything that would be considered an act of misconduct, health profession corporations should consider creating and meaningfully implementing anti-discrimination policies to mitigate against this heightened risk of liability.
Moreover, under the HPOA, if an order is made for a monetary penalty, or for hearing costs or investigation expenses payable to a regulatory college, the amount payable is considered to be a debt due to the regulatory college. Such debt may be recovered from the respondent alone, or from both the respondent and a health profession corporation through which the respondent provided health services, in which case, the respondent and the health profession corporation are jointly and severally liable. This means that a regulatory college may pierce through the corporate veil if they wish to collect a monetary penalty from a respondent who does not have sufficient assets to meet a penalty order but their corporation does.
Lastly, the HPOA prohibits a health profession corporation from carrying on any activities that would, for the purposes of the Income Tax Act (Canada) (the "ITA"), give rise to business income, except to provide health services the corporation is authorized to provide under its permit. Please note that this provision is not new; there is an equivalent provision in the HPA. In other words, it has always been illegal for health profession corporations to engage in any activities giving rise to business income taxable under the ITA, unless they are related to the services they are authorized to provide.
The HPOA aims to enhance public safety and protection by, among other things, subjecting health profession corporations to additional obligations that do not exist under its predecessor. As a consequence, health profession corporations and their insurers will likely face increased risk of liability. Considering this, health profession corporations should consider revisiting their policies to ensure their compliance with the HPOA.
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