Bill 46: Regulatory Reform Comes to Alberta (Part IV)
The proclamation of the Health Professions Act in 2001 was the culmination of 7 years of policy analysis as well as broad-based repeated consultation with the public, other stakeholders, and regulatory colleges. This lengthy and careful process of regulatory design proved its value since in the next 16 years only relatively minor amendments to the HPA were made, with one exception. The one exception was the passage in 2007 of very controversial amendments to Part 8.1 permitting the Minister to intervene directly in the affairs of a regulatory College without legislative amendment. This was an important public policy change and is a power that has recently been used by the Minister to direct a College to change a standard of practice.
Despite the long-term stability of the substantive provisions of the HPA, times change and society’s needs evolve leading to regulatory reform across Canada, around the world, and in Alberta. In 2018 regulatory reform (Part I) came to Alberta with the passage of Bill 21, An Act to Protect Patients, which reformed the treatment of sexual abuse and sexual misconduct complaints under the HPA. In 2019 regulatory reform (Part II) continued with the passage of the Fair Registration Practices Act creating an oversight system for the registration processes of Colleges with a particular focus on the registration of internationally educated professionals. The FRPA created new obligations on Colleges with respect to their registration processes. In the spring of 2020, Bill 30 (Part III of regulatory reform) was passed which requires by April 1, 2021 that 50% of Council, Hearing Tribunals, Complaint Review Committees, and Council members hearing appeals of Hearing Tribunal decisions be public members. Bill 30 is a fundamentally important policy shift changing the paradigm of “self-regulation” to “co-regulation.”
On November 5, 2020, the Health Statutes Amendment Act, 2020 (Part IV of regulatory reform) passed first reading in the Legislature. Bill 46 amends a broad range of health care statutes including the HPA. Bill 46 implements a number of the regulatory reform proposals in the “White Paper” and makes other amendments to clarify and strengthen certain HPA provisions. There were some proposals in the “White Paper” which, from my perspective, did not make sense in advancing the public interest. The most problematic proposals did not provide much analysis or justification on how the change would advance the public interest. Thankfully, the most problematic proposals in the discussion paper were not included in Bill 46.
The amendments to the HPA in Bill 46 are comprised of 42 pages of dense text. The amendments are very significant. Many of the amendments realign the use of particular “regulatory tools” in order to streamline the regulatory processes. “Regulatory tools” in the HPA include:
- Legislative provisions in the main body of the HPA
- Provisions in the Schedules to the HPA
- Council regulations approved by the Lieutenant Governor in Council (“LGIC”)
- LGIC regulations
- Standards of practice
- Codes of ethics
The realignment means that different tools will be used to address certain subject matters. Making the changes required by this realignment will be a major undertaking for Colleges.
From a public policy perspective, the most notable provision in Bill 46 is the requirement of the separation of regulatory and association functions. Bill 46 will require every College to critically examine the activities it undertakes with some Colleges being required to engage in a careful and thoughtful devolution of certain activities.
Bill 46 represents the fourth major professional regulatory reform initiative in the past two years making the pace of change challenging for all regulators. It is important to note that Bill 46 has only had first reading so it is possible that there could be further amendments to the Bill. I would also note that from my perspective the feedback provided by stakeholders was given serious consideration and impacted many of the provisions.
To assist regulators we have prepared the following summary of the major amendments to the HPA arising from Bill 46:
- Restricted Activities are currently set out in Schedule 7.1 of the Government Organization Act. The provisions of Bill 46 essentially transfer the list of restricted activities from the Government Organization Act to the HPA as a new Part 0.1.(s. 71, 72, 121)
- The restricted activities that a regulated member can perform are currently set out in each College’s regulation. This regulation-making power by a College will be removed (s. 95(a)(c)). Instead, a new regime will be established under which the Lieutenant Governor in Council passes a regulation setting out which regulated members of different Colleges can perform specific restricted activities. A regulation made by the LGIC that adds or removes authorization to perform a restricted activity can only be made after the Minister has consulted with the affected College (s. 97).
Commentary: Given that the regulatory regime for restricted activities is such as an essential part of the regulation of health professions, it seems sensible to have the restricted activities as part of the HPA rather than in a separate Act. Hopefully, this will help facilitate a long-overdue review and updating of the restricted activities. College regulations require the passage by Council and LGIC approval. Switching the regulatory tool to an LGIC regulation means that Councils will not first have to adopt a regulation amendment on restricted activities that affects their regulated members. However, as a counter-balance, amendments to the regulation affecting a College’s regulated members cannot be made without consultation by the Minister with the affected College.
Separation of Colleges and Professional Associations
- Section 3(2) currently prohibits a College from setting professional fees, providing guidelines for professional fees or negotiating professional fees on behalf of some or all of its members. There is currently an exception permitted if the Minister grants authorization under s. 27. Bill 46 eliminates this exception (s. 73(b); see also s. 75 and 80).
- Colleges may carry out functions in addition to those set out in s. 3(1) of the Act provided those functions are consistent with the College’s role in this section (s. 73(c)).
- A College must not act or hold itself out as a “professional association”. However, nothing in the section is intended to prevent a College from collaborating or cooperating with or engaging the services of a professional association, labour union, or other regulatory body to undertake activities that align with the role of the college including professional development, education program accreditation, developing competency best practices, promotion of national standards and labour mobility, and providing for national examinations (s. 73(c)).
- A College that at the time the section comes into force serves or purports to serve as a professional association must within 6 months of the section coming into force provide the Minister with a plan to divest itself of its professional association functions and within 18 months after the section coming into force have no functions of, or connection to or affiliation with a professional association (s. 74).
- An individual who is an “officer” or “senior employee” of a professional association or a labour union that represents members of a regulated health profession is not eligible to be appointed or elected to any of the following positions: member of a Council; member of a registration committee, competence committee, or hearing tribunal; Complaints Director; Hearings Director or delegate; Registrar or delegate; President of a Council or delegate. If an individual is serving in one of these capacities and subsequently becomes an officer or a senior employee of a professional association or a labour union representing members of a regulated health profession, then the individual is terminated from their position with the College (s. 76).
Commentary: The provisions in section 73(b) permitting other functions in addition to those in section 3(1) provided they are consistent with a College’s role demonstrate that policymakers were listening to feedback about being careful to avoid unintended consequences that would be detrimental to the public interest. An inherent challenge will be in defining what it means to “act or hold itself out as a professional organization.”
- The details of a College’s Competence Committee and Continuing Competence Program will be shifted from a College’s regulation to the College’s standards of practice (s. 77, s. 89).
- Terminology of “practice visits” is shifted to “assessments of regulated members’ competence” (s. 77(a)(ii) and 89).
- Colleges must establish a continuing competence program within their standards of practice within 18 months after coming into force of the subsection (s. 88).
- The continuing competence program must require participation “in a program for self-directed professional development” (s. 88(b)(i)).
- The continuing competence program may provide for examinations, interviews or other competence assessments (s. 88(b)(ii)).
- Change in language on when a referral to Complaints Director can be made (s. 90).
Commentary: a central concern of Colleges has been the government backlog in getting their regulations updated. Many Colleges have wanted to update the details of their Continuing Competence program as set out in their Regulation. Switching the “regulatory tool” from College regulation (that required LGIC approval) to standards of practice (requiring consultation) is a smart move since it will make the updating process more streamlined. It will also enable a few Colleges who have never been able to establish a Continuing Competence program in their regulation due to the backlog to establish programs in their standards of practice.
- Additional detail is required in applications to establish a new regulated profession including an explanation of why an existing College would not be appropriate to govern the proposed regulated profession (s. 78).
Amalgamation of Existing Colleges
- Provisions are added enabling Colleges to apply to the Minister to amalgamate (s. 79).
Commentary: The provisions enable amalgamation but do not mandate amalgamation.
Transferring Certain Regulatory Requirements from Regulations to Bylaws
- Professional Liability Insurance (s. 81(a)(i)); 84(a)(ii)).
- Being a Canadian citizen or lawfully permitted to work in Canada (s. 81 (a)(ii)).
- English language proficiency (s. 81(1)(a)(iv) ).
- For the purpose of registration, recognizing other jurisdictions as having substantially equivalent competence and practice requirements. Previously recognition was by Council or set out in regulations. Now, recognition is as set out in Bylaws (s. 81(b)(i)).
- Entering and removing information from the registers (s. 83(a)(i)).
- Evidence to be provided with respect to good character and reputation (s. 96(c)).
Commentary: Given the government backlog in updating College’s regulations, switching the “regulatory tool” from regulations to bylaws is a smart way to streamline the updating process.
- Every applicant for registration must provide evidence of providing good character and reputation. The requirement does not need to be set out in the regulations (s. 81 (a)(iii))
- Change of wording from applicants being required to not only advise if they are an “investigated person” in another jurisdiction but to also indicate if they have been disciplined by another regulatory body responsible for the profession in another jurisdiction (s. 81 (a)(v)).
- Slight change in the wording of substantial equivalency provisions in s. 28(2)(c) (s. 81(b)(i)).
- Slight change in the wording of personal information an applicant must provide and a requirement that regulated members update their personal information with any changes (s. 83(a)(ii); 83(b)and 84(a)(iii)).
- Slight change in wording concerning imposing conditions on a practice permit (s. 84(b)).
- Includes a non-inclusive list of the type of conditions that may be imposed on a practice permit (s. 85).
Moving Typical Provisions in College Regulations to the HPA
- Process for assessing good character and reputation. This includes provisions relating to ensuring procedurally fair assessments (s. 82).
- At the request of the Registrar, the applicant must provide evidence of fitness to practice (s. 81(a)(viii)).
- An applicant for a practice permit may be required to provide information on current good character and reputation and fitness to practice (s. 84(a)(iv)).
- Reinstatement process for registration and practice permits cancelled under Part 4 (s. 86 and 87).
- Alternative Complaints Resolution Process (s. 91).
- Time limits for providing information to members of the public (s. 92(4)).
Commentary: Given that many of these provisions among Colleges are quite similar in the regulations, policy-makers determined that it made sense to standardize and move from regulations to the HPA itself. Colleges will need to examine the detail of the provisions to identify any changes from the processes in their current regulations.
- Currently, each College’s regulations specify which regulated members can use protected titles in the Schedule. Bill 46 changes this approach by providing that regulated members can use the titles in accordance with s. 128 and in accordance with standards of practice (s. 94; also see the amendments to the title provisions in the Schedules in s. 99 to 119).
- No regulated member shall use protected titles or abbreviations, the words “specialist”, “registered”, “regulated”, “regulated health professional” except in accordance with the standards of practice (s. 94 (10.1)).
Commentary: Switching the regulatory tool for protected titles from regulations to standards of practice should streamline the regulatory process of assigning rights to use particular titles.
Regulation Making Power of Council
- The scope of the regulation-making power of Council is reduced to recognize the realignment of regulatory authority from Council regulations to the HPA, bylaws, LGIC regulations, and standards of practice (s. 95)).
Bylaw Making Power of Council
- The power of Council to make bylaws concerning the use of the term “specialist” is eliminated since will be addressed in standards of practice (s. 96(a)).
- The power to make bylaws concerning benefit programs and educational incentives and respecting professional fees is eliminated (s. 96(b)).
- The power to make bylaws concerning setting and negotiating professional fees is eliminated (s. 96(b).
- The power of Council to make Bylaws in certain areas is added in part to recognize the realignment of some regulatory functions from the regulations to the Bylaws (s. 96(c)).
Commentary: All Colleges will need to redo their Bylaws in advance of the proclamation of the sections of the Bill amending the HPA.
Approval of Regulations
- Council regulations currently do not come into effect unless approved by the Lieutenant Governor in Council. This is changed to approval by the Minister (s. 95(b); s. 98).
Commentary: Waiting for regulation amendments to make it to the priority list for the LGIC was causing a very serious backlog for Colleges. Switching to Ministerial approval is a smart move.
Health Care Aides
- Health Care Aides will be recognized as a regulated profession governed by the College of Licensed Practical Nurses which will be renamed the “College of Licensed Practical Nurses and Health Care Aides of Alberta” (s. 105).
- Bill 46 fixes a problem with the current wording in section 119(1)(f) to make it clear that subject to the Bylaws, the Registrar may publish or distribute information respecting any order made by a Hearing Tribunal or Council under Part 5 (s. 92).
- Slight broadening of the type of information that may be requested under s. 122(1) by the Minister (s. 93)).
- It should be noted that Bill 46 includes significant amendments to legislative provisions concerning health information. The analysis of amendments to that legislation is beyond the scope of this paper.
Coming Into Effect
- The amendments to the HPA come into force on proclamation with the exception of the provisions that remove the authority of Council to make bylaws respecting benefits programs and educational incentives and respecting professional fees and guidelines (s. 124(c).
Regulatory Reform Part V?
Some of the proposals in the White Paper remain under government analysis and consideration such as changes to the investigation and hearing process for discipline complaints. As a result, there is at least the possibility of another round of HPA amendments in the Fall of 2022.
Save the Date
To assist regulators in understanding what will be needed to implement Bill 46, Field Law’s Professional Regulatory Group will be hosting a complimentary webinar “Implementing Bill 46: A Checklist for Colleges” on Monday, November 23, from 12:00 PM to 1:30 PM MT. More details to come.