Who’s Responsible Here? The Regulation of Telepractice
Perspectives for the Professions
The internet facilitates world wide access to professional services. This in turn raises significant jurisdictional issues for regulators. If an individual or a company resides in jurisdiction “A” and provides professional services over the phone or internet to a patient who resides in jurisdiction “B”, what regulator has jurisdiction? Is it the regulator where the individual or company providing the professional services resides? Is it the regulator where the patient resides? The answer certainly cannot be “neither” or else the public protection afforded by professional regulatory structures would be severely undermined.
If or when a regulator learns that patients in Alberta are receiving professional services over the phone or internet from individuals or companies outside of Alberta, the first legal issue that arises is whether the statutory regime in Alberta applies? The answer to this question depends on whether there is a sufficient connection between Alberta, its legislation and the individual or company.
This issue was very recently considered by the Ontario Court of Appeal in College of Optometrists of Ontario v. Essilor Group Inc. In this case, the company was located primarily in British Columbia and sold eyeglasses and contact lenses over the internet to individuals in Ontario (and other parts of Canada) without the involvement of optometrists or opticians registered in Ontario.
The College of Optometrists of Ontario applied to the Ontario Superior Court of Justice for an order directing the company to comply with the statutory regime in Ontario. The Court granted the College’s application after finding that a sufficient connection existed between Ontario, its legislation and the company.
However, the Court of Appeal subsequently allowed the appeal and overturned the Court’s decision. More specifically, the Court of Appeal concluded that there was not a sufficient connection between Ontario, its legislation and the company. As a result, Ontario’s legislation did not apply to the company. In reaching this conclusion, the Court focused on the following:
- The company was in compliance with the laws in British Columbia (where the company was based), which allowed for the online dispensing of lenses without personal interaction with the patient.
- The simple ordering of the lenses should not be considered a connection with Ontario because the conduct in Ontario is by the patient (who ordered the lenses) and not the company.
- The transaction involves both a health care service (providing lenses) and a commercial transaction (the sale). The fact that the commercial transaction occurred in Ontario is less significant than if the health care service was provided in Ontario.
- The Court acknowledged that Ontario’s legislation required a practitioner to fit lenses. However, the Court held that the fact that the company was not complying with this requirement was not determinative. The Court again highlighted that the company was complying with the laws in British Columbia.
The Court of Appeal’s decision in Essilor suggests that, in determining whether the statutory regime in Alberta applies, the regulator should determine whether the legislation from another jurisdiction might also apply to the individual or company. If the answer to this question is yes, the regulator should then consider whether the individual or company is in compliance with the legislation from the other jurisdiction.
In addition to whether the statutory regime in Alberta applies, there are a number of other issues that regulators should consider here.
- Is the individual or company engaged in a restricted activity? If so, is the individual or company authorized to perform the restricted activity in Alberta? Assuming that the statutory regime in Alberta applies, if the individual or company is engaged in a restricted activity under Schedule 7.1 of the Government Organization Act, then the individual or company must be authorized under the Health Professions Act to perform the restricted activity in Alberta. If the individual or company performs a restricted activity for a patient when they are not authorized to do so, the court may grant an injunction to prohibit the individual or company from continuing to perform the restricted activity for others (Government Organization Act, Schedule 7.1, section 7). However, it’s important to note that an application to the court for an injunction here may only be made with the Minister of Health’s approval. Such approval is not guaranteed and even if approval is granted, there is generally a delay between when approval is sought and then granted.
- Is the individual or company representing or implying that they are a regulated member in Alberta? Section 128 of the Health Professions Act provides that no person or group of persons shall represent or imply that the person is a regulated member or that the group of persons consists of regulated members unless the person is a regulated member or the group of persons consists of regulated members. If the individual or company represents or implies that they are registered in Alberta when they are not, the court may grant an injunction to prohibit the individual from doing so (Health Professions Act, section 130).
- Does the provision of services in this way comply with regulator’s standards of practice, code of conduct or other standards and guidelines? Even if the individual or company is authorized to perform the restricted activity in Alberta, the regulator should consider whether providing such services over the phone or internet is consistent with the standards and expectations set out in the regulator’s standards of practice and code of conduct. Most regulators do not have a standard of practice on telepractice specifically. However, various standards and expectations may indirectly apply. For example, is the professional required to meet with the patient in person? On the other hand, some regulators have developed a standard of practice to specifically address telepractice.
More generally, regulators should also contemplate what impact the internet and related technologies may have on their profession going forward. In particular, regulators may want to consider whether to specifically address telepractice in their standards of practice or other some other guidelines. As mentioned above, some regulators have followed this approach. In most of these cases, telepractice is allowed, but only subject to certain conditions or restrictions. Examples of conditions or restrictions include:
- the professional must be licensed and registered in the jurisdiction where they reside;
- telepractice may only be practiced if it is in the patient’s best interest;
- the professional must ensure that their insurance covers the provision of telepractice;
- the professional must identify what resources are required for the service (e.g. video conferencing) and only proceed if those resources are available; and/or
- consultation between the professional and the patient must take place by real-time audio and visual link.
The College of Optometrists of Ontario is applying for leave to the Supreme Court of Canada to appeal the Court of Appeal’s decision in Essilor. Field Law’s Professional Regulatory Group will provide updates as the process unfolds. For the time being, it’s important for regulators in Alberta to understand that the decision is not binding on courts in Alberta, but it is likely to be strongly influential.
If the decision in Essilor is applied here, then the impact on Alberta regulators may be that the regulatory scheme in another province will determine whether professional services can be delivered in Alberta over the phone or internet. This creates complexity and may also undermine the authority of Alberta regulators to address public protection issues arising from phone or internet-based platforms. In assessing issues of legal compliance, the specific details of how the professional services are being delivered need to be examined. Field Law’s Professional Regulatory Group would be pleased to assist you in addressing the legal issues raised by telepractice or developing a strategy or plan for dealing with telepractice going forward.