Sweeping new act strips B.C. docs of their voice on regulatory college board

CORRECTION: This article, which ran Jan. 4, 2022, originally contained incorrect information. Though the board of the College of Physicians and Surgeons of B.C. will no longer be elected by doctors, the new act says that 50% of the board members, now appointed by government, will in fact be physicians. The earlier article incorrectly said there would be no physicians on the board. The British Columbia legislature has passed a Health Professions and Occupations Act (HPOA/Bill 36) that will have a significant impact on how physicians are regulated in the province, with potentially severe penalties if a health professional collides with the act or chooses to speak out against the manner of its implementation. The new umbrella act contains some key aspects that Doctors of BC (DOBC) has flagged as problematic. “(HPOA) came so quickly, without our input, and we are concerned that the act takes away the democracy component,” said outgoing Doctors of BC president, Dr. Ramneek Dosanjh in an interview with the Medical Post. “Right now, our members are elected (onto the board of the College of Physicians and Surgeons of British Columbia) from our peer group.” Under the new act, all board members of all healthcare professions’ regulatory bodies will be appointed by government. Read: Roundup: How do Canada’s physician colleges differ on handling sexual misconduct complaints? Dr. Dosanjh’s concerns are being echoed by B.C. physicians across social media—and by certain other B.C. health professions who have spoken out against government’s ramped up control of self-governing professions: B.C. Nurses’ Union president, Aman Grewal, did a Dec. 28 interview on CTV flagging potential political interference that could become a norm under Bill 36. “We need to ensure that (health professionals) are allowed due process and that privacy is protected—balancing protection of our communities and the public, but also our members,’” Grewal said, stressing the importance of having focused professional input on the boards, “to provide guidance to anybody that does not have experience as to what is the proper standard of care.” The B.C. Dental Hygienists’ Association published a statement saying: “While there was consultation … (which the BCDHA participated in a number of times), the legislation that was put forward is vastly different than what was anticipated coming out of those consultations. We are continuing to review some of the main concerns raised, which include: The rules around complaints, investigations and discipline; board appointments and composition; licensee duties; implications of support programs; a very limited appeal process; downstream costs to licensees, and more.” The act is 278 pages long and, having been released just before Christmas, health professionals and journalists are only just beginning to read it fully and digest it. The act The HPOA replaces the previous Health Professions Act (which granted professions rights to govern themselves in the public interest). It affects 25 health professions altogether. That’s 129,313 healthcare workers, currently, not just the province’s 14,630 doctors. In a streamlining effort, the act will reduce the number of regulatory colleges from fifteen to six. A number of previously unregulated professions (counsellors and psychotherapists, as well as some diagnostic and therapeutic professions) will be regulated under the new act, according to the BC Ministry of Health’s media release announcing HPOA’s Nov. 24 passage. (One amalgamation will combine the regulatory colleges for dieticians and occupational therapists, psychologists and speech and hearing professionals. Another amalgamation will bring together chiropractors, massage therapists, naturopathic physicians, traditional Chinese medicine and acupuncturists.) Doctors of BC have strongly advocated for the addition of physicians’ assistants to the CPSBC but that did not happen. “Our government is making the most significant changes to the oversight of regulated professions in British Columbia’s history,” BC Minister of Health Adrian Dix acknowledged in the November media release. He highlighted the act’s streamlining of colleges, its reformed regulatory process, its “stronger oversight” and “more consistent discipline across the professions”—changes which he said “act in the public interest and protect patient care across the provinces.” Dix also noted the HPOA’s “reformed complaints process that increases accountability and transparency and protects people in vulnerable circumstances and creates a commitment to cultural safety and humility.” The government sees its elimination of health professionals’ input on regulatory boards as an improvement, calling it a protective step that ensures board members “will not be beholden to their elective bodies.” Discipline tribunals To be clear, the act contains many positive features that are being widely welcomed, such as sections that clearly define sexual misconduct, discrimination and its infringements. HPOA embeds anti-discrimination measures in the delivery of healthcare services. It is said to reflect key recommendations from the 2020 In Plain Sight Report Addressing Indigenous-Specific Racism and Discrimination in British Columbia Health Care. It implements elements of B.C.’s Declaration of the Rights of Indigenous Peoples Action Plan. The B.C. Green Party was involved in consultations and supported the governing New Democratic Party in passing HPOA with a strong majority. Nobody has taken issue with the act’s probably overdue measures to target discrimination, create greater public accountability, transparency, equality and so forth—clearly positive steps. The concerns being expressed are with the virtually absolute power the provincial government will now yield with respect to how these things come to be implemented and enforced. For example, the increased government control does not end with its exclusive power to appoint regulatory board members. A new supervisor position (the Office of The Superintendent of Health Profession and Occupation Oversight, also exclusively appointed by the government), will have oversight power over all the regulatory colleges—conducting routine audits of them, setting standards on policy and practice, investigating complaints about the colleges and their licensees and making them public. The oversight body is empowered to make decisions about the open release of internal information if it deems it to be in the public interest to do so. That includes the allowed release of information about complaints against doctors, even in initial stages before it has been determined whether or not the complaint is warranted. (The sweeping language of the act might even make this routine because it states that all “agreements” between the regulatory colleges and registrants are to be made public.) “Independent discipline tribunals” (specially appointed, with one member from the profession under investigation) will “allow the colleges to investigate their own members, while ensuring that their focus remains on protecting the public.” (That wording is from the government’s announcement of the Act). Here’s how this complaint and investigation process will now work: The investigation stage will remain with the colleges, while the discipline stage will be “supported by the oversight body,” according to the MOH release. How will these parallel investigatory processes work together without being cumbersome and confusing? The bottom line is that the supervisor outranks the colleges and has sweeping powers to interfere. The supervisor can decide to make any information public if he/she deems it to be in the public interest. That can be about defending warranted transparency—things have definitely tended to be on the murky side in B.C. Or it could be the public release of information about a relatively minor complaint against a doctor that has yet to be fully substantiated, with the final judgment pending. (Under the previous act, that would not happen.) Gag orders on non-compliance? With respect to the health professionals governed by the act, under section 514, people are considered to be guilty of legal offences if they knowingly disclose information in contravention of provisions of the act, provide false or misleading information to a person who is exercising a power or performing a duty under the act, or willfully interfere with or obstruct another person in the exercise of power or performance of a duty under the act. The penalties for these offences range from $50,000 to $500,000 in fines and six months to two years in jail. While that language might sound like straightforward legal enforcement, it is potentially concerning when you consider that, in B.C. physicians and other healthcare professionals who work for the of the province’s six health authorities are already subject to gag orders. Physicians who have issues with some aspect of how the new act is being enforced or interpreted may be nervous about speaking out. Another change: under the new act, healthcare workers will not be eligible for licensure if they are not vaccinated against identified public health threats. There are anti-vaxxers within the health professions. During the pandemic, a significant number of nurses and ambulance drivers that felt strongly enough about it that they lost their jobs. Under the new act, they could face jail if they protest. Doctors might encounter a different set of perceived infringements. On a day-to-day level, the new act gives designated officials the right to search, seize or copy a physician’s office records, without notice, anytime within office hours. Public response In the aforementioned Dec. 28 story, CTV journalist Penny Daflos said the changes to the administration of colleges is a big issue “rankling healthcare professionals.” Dix told Daflos that the impetus for the act was “complaints from the media and the public that the colleges were opaque and unresponsive to requests for information about disciplinary hearings and other actions.” Daflos responded by challenging the B.C. government for “alleging (the act) will add more transparency when it has been criticized for concealing and obfuscating” with respect to the pandemic and “other public health information.” (B.C. has been accused of not releasing accurate numbers of COVID cases or the results of COVID testing in effluent water). Doctors of BC Doctors of BC president Dr. Dosanjh said that while much if what is in the act is commendable, it was a “big surprise” and that physicians had practically no opportunity to give input. On the Doctors of BC website it states that physicians wrote the health ministry a letter on June 24, 2019, when the act was first contemplated and a Jan. 24, 2020 letter from then-president Dr Kathleen Ross that took issue with specific aspects as the act took form. That letter included online input Doctors of BC had collected from its membership. “A number of our members raised concern about the (act’s) publication of all complaints that lead to disciplinary action, even those that are minor in nature,” Dr. Ross wrote, also saying physicians felt the CPSBC’s referring of all complaints to an independent tribunal was not a good idea. She urged that frivolous complaints continue to be addressed at the college level, without the intervention of an independent disciplinary panel. Dr. Ross said that “appointing rather than electing (CPSBC) board members has the potential to politicize board decisions,” and requested further opportunities for Doctors of BC to give feedback. (That did not happen). Her letter listed some of the concerns raised in the member survey. Members objected to no longer having say in how the CPSBC would be governed, given that physicians pay the college mandatory annual dues. They commented that the proposed oversight body would add unwarranted layers of bureaucracy and expense. The final act does not reflect the physicians’ concerns. Dr. Dosanjh (who just became past-president of Doctors of BC when her term ended on Jan. 1), told the Medical Post she believes stripping physicians of their voice on the CPSBC Board is a retrograde step, neither in the public interest or patients. “They (the board members) make decisions that are fundamental to the governance of our profession and the regulation of health professions and without that insight (provided by board members who work in the health profession), we think it is problematic,” she said. “Obviously egregious actions should be made public—there is a Disclosure Act—but making disciplinary actions public—even if they are minor—may hamper public trust in health professionals and result in long-term harm to individual reputations, especially in a world of social media,” Dr. Dosanjh said. She also feels the passage of the act is extremely bad timing. A million B.C. residents do not have a family physician. There is a looming crisis in every branch of medicine with many physicians nearing retirement. The pandemic continues to exhaust healthcare workers of every stripe. Dr. Dosanjh is worried HPOA is one more stressor that will push anyone who is wavering out of medicine altogether. B.C.’s move to reform the previous legislation was a response to concerns raised in a 2019 report published by Harry Cayton, former chief executive of the United Kingdom Professional Standards Authority. Cayton was appointed by the Ministry of Health to review the Health Professions Act, and he flagged issues of public accountability and transparency with respect to how the B.C. regulatory colleges have been functioning. The regulations that go with the act have yet to be written. The previous Health Professions Act will continue to be in effect until that is completed.

Sweeping new act strips B.C. docs of their voice on regulatory college board

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