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AN ACT TO PROTECT PATIENTS

Bill 21

AN ACT TO PROTECT PATIENTS

Chapter 15

(Assented to November 19, 2018)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Amends RSA 2000 cH‑7

1   The Health Professions Act is amended by this Act.

 

2   Section 1(1) is amended

                            (a)    by adding the following after clause (x):

                             (x.1)    “patient”, for the purposes of a complaint made in respect of unprofessional conduct in relation to sexual abuse or sexual misconduct, means a patient as set out in the standards of practice of a council;


                           (b)    by adding the following after clause (nn):

                           (nn.1)    “sexual abuse” means the threatened, attempted or actual conduct of a regulated member towards a patient that is of a sexual nature and includes any of the following conduct:

                                        (i)    sexual intercourse between a regulated member and a patient of that regulated member;

                                      (ii)    genital to genital, genital to anal, oral to genital, or oral to anal contact between a regulated member and a patient of that regulated member;

                                     (iii)    masturbation of a regulated member by, or in the presence of, a patient of that regulated member;

                                     (iv)    masturbation of a regulated member’s patient by that regulated member;

                                       (v)    encouraging a regulated member’s patient to masturbate in the presence of that regulated member;

                                     (vi)    touching of a sexual nature of a patient’s genitals, anus, breasts or buttocks by a regulated member;

                           (nn.2)    “sexual misconduct” means any incident or repeated incidents of objectionable or unwelcome conduct, behaviour or remarks of a sexual nature by a regulated member towards a patient that the regulated member knows or ought reasonably to know will or would cause offence or humiliation to the patient or adversely affect the patient’s health and well‑being but does not include sexual abuse;

                           (nn.3)    “sexual nature” does not include any conduct, behaviour or remarks that are appropriate to the service provided;

 

3   Section 4 is amended by adding the following after subsection (1):

(1.1)  A statement respecting complaints referred to in subsection (1)(a) must include

                                       (a)    the number of complaints alleging sexual abuse or sexual misconduct, and

                                       (b)    the number of findings of unprofessional conduct based in whole or in part on sexual abuse or sexual misconduct.

 

4   Section 16 is amended by adding the following after subsection (1):

(1.1)  When establishing a hearing tribunal where the subject‑matter of a hearing relates to a complaint alleging sexual abuse of or sexual misconduct towards a patient by a regulated member, the hearings director must make every reasonable effort to ensure that

                                 (a)    at least one member of the hearing tribunal has the same gender identity as the patient,

                                 (b)    all members of the hearing tribunal have received training on trauma informed practice and sexual violence, and any other training specified by the Minister, and

                                 (c)    all members of the hearing tribunal have completed the training referred to in clause (b) prior to serving on a hearing tribunal.

(1.2)  For the purposes of ensuring that at least one member of the hearing tribunal has the same gender identity as the patient under subsection (1.1), the hearings director may select one member from the membership list established by another council under section 15 to be appointed as one additional public member.

 

5   Section 28(1) is amended by striking out “and” at the end of clause (f) and by adding the following after clause (g):

                           (h)    a criminal record check,

                            (i)    evidence of whether the applicant is currently an investigated person under this Act or the equivalent of an investigated person in another jurisdiction,

                            (j)    any information required by the registrar respecting whether any conduct of the applicant has previously constituted unprofessional conduct,

                           (k)    evidence of whether the applicant has ever had conditions imposed on the applicant’s practice permit or equivalent, and

                            (l)    evidence as to whether there has ever been a judgment in a civil action against the applicant with respect to the applicant’s practice.

 

6   Section 35 is amended by renumbering it as section 35(1) and by adding the following after subsection (1):

(2)  A regulated member may request the registrar to correct or remove any information in the register that is inaccurate or incomplete if the regulated member provides the registrar with the information that is necessary to enable the registrar to correct the incomplete or inaccurate information.

 

7   Section 45 is amended

                            (a)    in subsection (2) by striking out “A person” and substituting “Subject to subsection (3) or (4), a person”;

                           (b)    by adding the following after subsection (2):

(3)  A person whose practice permit and registration are cancelled as a result of a decision of unprofessional conduct based in whole or in part

                                 (a)    on sexual abuse, or

                                 (b)    on a conviction of the person under section 151, 152, 153, 153.1, 155, 162, 162.1, 163.1, 171.1, 172.1, 172.2, 173, 271, 272, 273, 286.1, 286.2 or 286.3 of the Criminal Code (Canada),

may not apply for the practice permit to be reissued and the registration reinstated.

(4)  Subject to subsection (3), a person whose practice permit and registration are cancelled as a result of a decision of unprofessional conduct based in whole or in part on sexual misconduct may not apply for the practice permit to be reissued and the registration to be reinstated until at least 5 years have elapsed from the date that the decision of unprofessional conduct was made by the hearing tribunal.

(5)  A person whose practice permit and registration are cancelled under section 96.2(1)(a) or (2)(a) may not apply for the practice permit to be reissued and the registration to be reinstated.

(6)  If a person’s application under subsection (4) is refused, the person must wait a minimum of 6 months before making a subsequent application to have the person’s practice permit reissued and registration reinstated.

 

8   Section 55 is amended

                            (a)    in subsection (2)(a) and (b) by adding “subject to subsection (2.1),” before “may”;

                           (b)    by adding the following after subsection (2):

(2.1)  Subsection (2)(a) and (b) do not apply in respect of a complaint made alleging sexual abuse or sexual misconduct against an investigated person.

 

9   Section 57 is amended

                            (a)    in subsection (1) by adding “, as soon as reasonably possible,” after “must”;

                           (b)    by adding the following after subsection (1):

(1.1)  An employer who has reasonable grounds to believe that the conduct of a regulated member constitutes unprofessional conduct based on behaviour that, in the employer’s opinion, is sexual abuse or sexual misconduct must, as soon as possible, give notice of that conduct to the complaints director.

                            (c)    in subsection (2) by adding “or (1.1)” after “subsection (1)”.

 

10   Section 58(7) is amended by adding “, including where the information relates to sexual abuse or sexual misconduct” after “original complaint”.

 

11   Section 61 is amended

                            (a)    in subsection (1) by striking out “and” after clause (a), by adding “, and” at the end of clause (b) and by adding the following after clause (b):

                                 (c)    must notify the complainant and the investigated person with the status of the investigation every 60 days or within any other period of time agreed to by the complaints director, complainant and investigated person.

                           (b)    by adding the following after subsection (1):

(1.1)  An investigator must make reasonable efforts to interview the complainant unless, in the investigator’s opinion,

                                 (a)    an interview is not possible, or

                                 (b)    the complainant declines to be interviewed by the investigator.

(1.2)  A complainant may provide the investigator with the names of other persons who might have information related to the investigation that the investigator may interview.

 

12   Section 65(1) is amended by adding “at any time after a complaint is made until a hearing tribunal makes an order under section 82” after “may”.

 

13   Section 77(b) is amended by striking out “prior to the hearing” and substituting “at least 30 days before the hearing”.

 

14   The following is added after section 81:

Tribunal decision re sexual abuse or sexual misconduct

81.1(1)  If the subject‑matter of a hearing relates to a complaint alleging sexual abuse, and the hearing tribunal decides that the conduct of an investigated person constitutes unprofessional conduct based in whole or in part on sexual abuse, the hearing tribunal must immediately order the suspension of the investigated person’s practice permit until an order is made under section 82.

(2)  If the subject‑matter of a hearing relates to a complaint alleging sexual abuse or sexual misconduct, and the hearing tribunal decides that the conduct of an investigated person constitutes unprofessional conduct based in whole or in part on sexual abuse or sexual misconduct, before making an order under section 82 the hearing tribunal must provide the patient with an opportunity to present any written or oral statement describing the impact the sexual abuse or sexual misconduct has had on the patient.

 

15   Section 82 is amended

                            (a)    in subsection (1)

                                  (i)    in clause (g) by adding “subject to subsection (1.1),” before “suspend”;

                                 (ii)    in clause (h) by adding “subject to subsection (1.1),” before “cancel”;

                           (b)    by adding the following after subsection (1):

(1.1)  If the subject‑matter of a hearing relates to a complaint alleging sexual abuse or sexual misconduct, and the hearing tribunal decides that the conduct of an investigated person constitutes unprofessional conduct based in whole or in part on sexual abuse or sexual misconduct, in addition to any order that the hearing tribunal may make under subsection (1),

                                 (a)    in respect of a decision of unprofessional conduct based in whole or in part on sexual abuse, the hearing tribunal must order the cancellation of the investigated person’s practice permit and registration, and

                                 (b)    in respect of a decision of unprofessional conduct based in whole or in part on sexual misconduct, the hearing tribunal must order the suspension of the investigated person’s practice permit for a specified period of time.

(1.2)  In respect of a decision of unprofessional conduct based in whole or in part on sexual misconduct, if a hearing tribunal orders that conditions be imposed on an investigated person’s practice permit generally or in any area of the practice of the regulated profession, a hearing tribunal shall not make any order directing the imposition of any gender‑based conditions.

 

16   Section 90(1) is amended by adding “or the complaints director, on behalf of the college,” after “An investigated person”.

 

17   Section 92(1)(d) is amended by adding “where the appellant is the investigated person,” before “if the appeal is”.

 

18   The following is added after section 96.1:

Unprofessional conduct in another jurisdiction

96.2(1)  If a governing body of a similar profession in Canada or the United States has determined that the conduct of a regulated member in that other jurisdiction constitutes unprofessional conduct, the registrar must

                                 (a)    cancel the regulated member’s practice permit and registration if, in the opinion of the registrar, the conduct that decision was based on constitutes sexual abuse, or

                                 (b)    suspend the regulated member’s practice permit for a specified period of time if, in the opinion of the registrar, the conduct that decision was based on constitutes sexual misconduct.

(2)  If the registrar is satisfied that the registrar has sufficient evidence that a governing body of a similar profession in another jurisdiction, other than in Canada or the United States, has determined that the conduct of a regulated member in that other jurisdiction constitutes unprofessional conduct, the registrar must

                                 (a)    cancel the regulated member’s practice permit and registration if, in the opinion of the registrar, the conduct that decision was based on constitutes sexual abuse, or

                                 (b)    suspend the regulated member’s practice permit for a specified period of time if, in the opinion of the registrar, the conduct that decision was based on constitutes sexual misconduct.

 

19   Section 97(1) is amended by adding “and section 135.93” after “In this section”.

 

20   Section 119 is amended

                            (a)    in subsection (4) by striking out “or section 33(3) or 85(3)” and substituting “, section 33(3) or 85(3) or any information published on the college’s website”;

                           (b)    in subsection (5) by striking out “may” and substituting “must”.

 

21   The following is added after section 122:

Information sharing

122.01  The Minister may disclose health information or personal information to a college if there are reasonable grounds to believe

                                 (a)    that the disclosure will avert or minimize a risk of harm to the health or safety of any person,

                                 (b)    that the conduct of a regulated member may constitute unprofessional conduct,

                                 (c)    that a person may be representing or holding out that the person is a regulated member of a college, or

                                 (d)    that a person may be performing a restricted activity without authorization.

 

22   The following is added after section 127:

Reporting Requirements

Reporting by regulated members

127.1(1)  If a person is a regulated member of more than one college and one college makes a decision of unprofessional conduct with respect to that regulated member, the regulated member must, as soon as reasonably possible, report that decision and provide a copy of that decision, if any, to the registrar of any other college the person is a regulated member of.

(2)  If a governing body of a similar profession in another jurisdiction has made a decision that the conduct of a regulated member in that other jurisdiction constitutes unprofessional conduct, the regulated member must, as soon as reasonably possible, report that decision and provide a copy of that decision, if any, to the registrar.

(3)  A regulated member must report any finding of professional negligence made against the regulated member to the registrar in writing, as soon as reasonably possible, after the finding is made.

(4)  A regulated member must report in writing to the registrar, as soon as reasonably possible, if the regulated member has been charged with an offence under the Criminal Code (Canada) or has been convicted of an offence under the Criminal Code (Canada).

(5)  This section applies to a decision made or a finding of unprofessional conduct with respect to a regulated member or a charge or conviction under the Criminal Code (Canada) made against a regulated member on or after the coming into force of this section.

Reporting of regulated members

127.2(1)  If in the course of a regulated member acting in the regulated member’s professional capacity the regulated member has reasonable grounds to believe that the conduct of another regulated member of any college constitutes sexual abuse or sexual misconduct, the regulated member must report that conduct to the complaints director.

(2)  A report under subsection (1) is not required if information respecting the conduct of that other regulated member was obtained in the course of the regulated member providing professional services to that other regulated member.

 

23   Section 132(1) is amended by adding the following after clause (t):

                           (u)    respecting additional information that may be published on a college’s website.

 

24   The following is added after section 133:

Specific standards of practice

133.1(1)  A council must develop and propose standards of practice

                                 (a)    setting out who is considered to be a patient for the purposes of the college’s regulated members,

                                 (b)    respecting when a sexual relationship may occur between a regulated member or former member and a patient, and

                                 (c)    respecting when a person who is a spouse of or in an adult interdependent relationship with a regulated member may also be a patient.

(2)  Factors that must be considered by a council under subsection (1)(b) and (c) include

                                 (a)    whether there is or was a power imbalance between the regulated member and the patient, and if any existed, whether there is minimal risk of a continuing power imbalance between the regulated member and the patient,

                                 (b)    the nature and extent of the professional relationship between the regulated member and the patient, and if relevant, whether sufficient time has passed since the last time professional services were provided to the patient by the regulated member,

                                 (c)    whether the regulated member knew or ought to have known that the patient is or was the regulated member’s patient at the time the sexual relationship was established,

                                 (d)    whether the regulated member has provided the patient with psychotherapeutic treatment, and

                                 (e)    whether the patient is in need of urgent care.

(3)  A college must provide, for review and comment, a copy of the proposed standards of practice developed under this section to

                                 (a)    its regulated members,

                                 (b)    the Minister, and

                                 (c)    any other persons the council considers necessary.

(4)  After a college has reviewed and considered comments received from a review described in subsection (3), and made any amendments that the college considers necessary to the proposed standards of practice, the council must submit any standards of practice developed under this section to the Minister for final approval.

(5)  A council may not adopt any standards of practice under this section unless the standards of practice have been approved by the Minister.

(6)  The Minister may set timelines for the development, proposal, review, comment and approval of standards of practice developed under this section.

(7)  The Regulations Act does not apply to standards of practice adopted under this section.

(8)  A college must ensure that copies of standards of practice adopted under this section are readily available to the public and regulated members, and the copies may be distributed in the manner directed by the council.

(9)  Standards of practice referred to in subsection (1) must be adopted by a council and come into force on or before March 31, 2019.

(10)  On or after April 1, 2019, the process set out in section 133 applies to proposed amendments to standards of practice adopted by a council under this section.

 

25   The following is added after section 135.4:

Minister’s direction

135.5(1)  Despite sections 133 and 133.1 and the bylaws of a college, if in the opinion of the Minister the standards of practice proposed under section 133.1 are not in the public interest, the Lieutenant Governor in Council may by order, on the recommendation of the Minister, make any standards of practice required under section 133.1.

(2)  Any standards of practice made under subsection (1) are deemed to be standards of practice adopted by a council.

 

26   The following is added after Part 8.1:

Part 8.2
Patient Relations Program
and Funding for Treatment
and Counselling

Establishment of patient relations program

135.6   A college must establish a patient relations program.

Patient relations program

135.7(1)  A patient relations program must include measures for preventing and addressing sexual abuse of and sexual misconduct towards patients by regulated members.

(2)  The measures for preventing and addressing sexual abuse of and sexual misconduct towards patients by regulated members must include

                           (a)    educational requirements for regulated members,

                           (b)    educational guidelines for the conduct of regulated members towards patients,

                           (c)    training requirements for the college’s staff, council members and any members appointed under section 13 or 15,

                           (d)    information for persons respecting the college’s complaints process, and

                           (e)    assistance in directing persons to appropriate resources, persons or organizations that may be able to assist them.

(3)  A patient relations program must perform any other functions prescribed in regulations.

Annual report

135.8(1)  A council must provide an annual report on the activities of the patient relations program to the Minister.

(2)  A report under this section must include

                           (a)    a description of the program,

                           (b)    if any changes to the program were made, a description of those changes, and

                           (c)    any other information requested by the Minister.

Funding for treatment and counselling

135.9(1)  A college must provide funding for the purposes of providing treatment or counselling for patients who meet the requirements set out in this section.

(2)  For the purposes of providing funding under this section, a college may establish its own fund or may jointly establish a fund with one or more colleges.

(3)  A college may appoint one or more persons to assist with the administration of the fund.

(4)  A patient is eligible for funding for treatment or counselling under this section if

                           (a)    a complaint is made respecting a regulated member that relates to sexual abuse of or sexual misconduct towards that patient by the regulated member, or

                           (b)    the patient meets the requirements set out in the regulations.

(5)  Funding under this section must be provided in accordance with the regulations.

(6)  A decision to provide funding under this section does not constitute a finding of unprofessional conduct against the investigated person and must not be considered in any proceedings under Part 4.

Lieutenant Governor in Council regulations

135.91   The Lieutenant Governor in Council may make regulations

                           (a)    respecting the additional functions of a patient relations program;

                           (b)    respecting a patient’s eligibility for funding for treatment or counselling;

                           (c)    respecting the amount of funding for treatment or counselling that may be provided to a patient;

                           (d)    respecting how funding for treatment or counselling may be provided for a patient;

                           (e)    respecting when funding must be provided for treatment and counselling to a patient;

                            (f)    respecting the administration of the funding for treatment or counselling for patients;

                           (g)    respecting the recovery of any funding provided for treatment and counselling;

                           (h)    respecting treatment and counselling generally.

Part 8.3
College Website

College website

135.92(1)  A college must establish and maintain a website to be made available to members of the public at no charge.

(2)  A college’s website must include, at a minimum, the following information:

                           (a)    the college’s annual report;

                           (b)    the college’s regulations, bylaws, standards of practice and code of ethics;

                           (c)    information in the college’s directory referred to in section 21(1);

                           (d)    information respecting each regulated member set out in section 33(3)(a), (b.1) and (d) to (g);

                           (e)    a copy of any decision made by a hearing tribunal, council or court of unprofessional conduct based in whole or in part on sexual abuse or sexual misconduct, including any orders made under section 82;

                            (f)    whether a regulated member’s practice permit has been suspended or cancelled as a result of a decision of unprofessional conduct based in whole or in part on sexual abuse or sexual misconduct;

                           (g)    any conditions placed on an investigated person’s practice permit as a result of a decision of unprofessional conduct based in whole or in part on sexual misconduct and details respecting those conditions, as specified by the Minister, if any.

(3)  The information in subsection (2)(e) must be published indefinitely unless otherwise provided for in this Act.

(4)  If a college chooses to publish any information in addition to the information set out in subsection (2), the council must make a bylaw describing the additional information that may be published on the college’s website.

(5)  A regulated member may request the registrar to correct or remove any information published on the website that is inaccurate or incomplete if the regulated member provides the registrar with the information that is necessary to enable the registrar to correct the incomplete or inaccurate information.

(6)  Information published on a college’s website must be easily accessible by a member of the public.

(7)  The Minister may prescribe guidelines respecting the manner in which information must be set out on a college’s website and the format in which the information must be published on the college’s website.

(8)  Decisions published under this section must only relate to findings of unprofessional conduct made after the coming into force of this section.

Exceptions to disclosure

135.93(1)  The registrar may refuse to disclose information to a person or publish information on the college’s website if, in the registrar’s opinion, the registrar has reasonable grounds to believe that the information

                           (a)    subject to subsection (2), is likely to cause harm to one or more persons, or

                           (b)    is no longer relevant to the regulated member’s suitability to practise.

(2)  For the purposes of determining whether the disclosure of information referred to in subsection (1) is likely to cause harm, the registrar shall not consider whether the reputation of the regulated member or any related practice in association may be harmed by the disclosure.

(3)  Subject to subsection (4), the registrar must not disclose information to a person or publish information on the college’s website if the information is related to a complaint process under Part 4 where there has been a decision of the hearing tribunal, council or court that the conduct of the investigated person did not constitute unprofessional conduct in relation to an allegation of sexual abuse or sexual misconduct.

(4)  The registrar must comply with the request of a regulated member to not disclose or publish information where there has been a decision by a hearing tribunal, council or court that the conduct of the regulated member does not constitute unprofessional conduct in relation to an allegation of sexual abuse or sexual misconduct and proceedings with respect to the complaint that was the subject of the hearing or appeal, if any, have been fully disposed of and concluded.

(5)  If the registrar discloses a person’s personal or health information to another person or publishes a person’s personal or health information on the college’s website, the registrar must only disclose that information

                           (a)    if it is in the public interest to do so, and

                           (b)    only to the extent that the information disclosed is reasonably necessary.

Ministerial regulations

135.94   The Minister may make regulations prescribing additional information that must be published on a college’s website.

 

27(1)  In this section, “previous Act” means the Health Professions Act, RSA 2000 cH‑7, as it read immediately before the coming into force of this section.

(2)  A complaint made about a regulated member under the previous Act that is not fully disposed of before the coming into force of this section must be concluded in accordance with the previous Act.

(3)  The Minister may make regulations

                           (a)    respecting the transition to the Health Professions Act as amended by this Act of anything under the previous Act, including the interpretation of any transitional provision in this Act;

                           (b)    to remedy any confusion, difficulty, inconsistency or impossibility resulting from the transition to the Health Professions Act as amended by this Act from the previous Act.

(4)  A regulation made under subsection (3) may be made retroactive to the extent set out in the regulation.

(5)  A regulation made under subsection (3) is repealed 2 years after the regulation comes into force.

(6)  The repeal of a regulation under subsection (5) does not affect anything done under the authority of the regulation before the repeal of the regulation.

 

28   Sections 2, 3, 4, 7, 8, 9, 10, 11, 13, 14, 15, 18, 19, 20, 22 and 26 come into force on April 1, 2019.