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AN EXAMINATION AND CRITIQUE OF THE RECOMMENDATIONS OF THE HEALTH PROFESSIONS LEGISLATION REVIEW Striking a New Balance: A Blueprint for the Regulation of Ontario's Health Professions. By The Association of Concerned Citizens for Preventive Medicine. February 1989. 415-B McArthur Avenue, Ottawa, Ontario, Canada. K1K 1G5 (613) 749-1002 Sections of the Health Professions Legislation Review, which are quotations from the recommendations Document, precede the Association of Concerned Citizens for Preventive Medicine's comment. The document under consideration includes an "Executive Summary". an "Overview of Recommendations". and "The Health Professions Procedural Code" which is heavily annotated. There are also the draft Acts for each profession. The following examination and critique by the Association of Concerned Citizens for Preventive Medicine looks at all of these parts in some degree, but is mainly concerned with the Procedural Code which lays down the rules for all the professions (and, of course, for every citizen who is not a "health professional"). Page 9: The criteria addressed four basic issues. COMMENT: The Report makes its own summary, but does not list the criteria as originally presented. It cannot be repeated too often that the criteria were arbitrarily developed by the Review for its own purposes. They are employed as if they have the force of law whereas they are, in fact, just guidelines. Page 10: ... all 24 professions met the criteria for self-regulation. COMMENT: The statement does not accord with the facts. The authors of the Report must know that the statement made is untrue and therefore we are entitled to conclude that the statement is self-serving and is intended to deceive the reader. Without going further than considering the original requirement that the profession must have a Canadian-based educational establishment, we find that several of the select and elect few do not qualify. These are the midwives, osteopaths and podiatrists. The fact that the midwives did not meet the criteria was early recognized and acknowledged, but political expediency led to the formation of a task force to work out a way of fitting them in. To say that they met the criteria at the time is to deliberately and knowingly utter a falsehood. The podiatrists did not have and do not have a school in Canada. The osteopaths do not have a school in Canada. Their remnants are to be swept into the arms of the College of Physicians and Surgeons of Ontario. who have no expertise in osteopathic medicine and have for decades fought for the extinction of osteopathy. They will probably attain that objective by the back- door method of ensuring that no further osteopaths are admitted to practice. The naturopaths met all the criteria despite the claims of the Review that they did not. There are clear medico-political motives operating here. It is noteworthy that all the professions to be regulated, except two, make no threat to the "medical establishment". They are supportive of it. The two exceptions are the midwives and the chiropractors. In both theses cases two factors operated. First, they both have powerful lobbies and so we again see political expediency at work. Second, they are both having their work and development restricted by the laws under which they will operate. Page 108 (Quotation is from Review's note on this page) 27.01 This is the key provision for enforcement of the licensed act model... (previously it) stated the rationale of licensing acts in terms of the potential for harm. These words have now been deleted. They are unnecessary and could conceivably cause confusion... The Review believes that prosecutorial discretion will be exercised in such a way that persons committing trivial, unintentional breaches will not be prosecuted. 27.01 No person shall perform any of the following licensed acts in the course of providing, purporting to provide or offering to provide human health care services. (1) Diagnosis; (2) Performing procedures on tissue beyond the dermis, beyond the surface of the mucous membranes and in or beyond the surface of the cornea of the eye; (3) Setting and casting of fractures and dislocations of bones and joints; (4) Moving the joints of the spine beyond an individual's usual physiological range of motion using a high-velocity, low- amplitude thrust; (5) Administering substances by injection or inhalation; (6) Performing invasive instrumentation, including manual and digital instrumentation, (a) beyond the external auditory canal; (b) beyond the nares; (c) beyond the larynx; (d) beyond the urinary meatus; (e) beyond the labia majora; (f) beyond the anal verge; (g) into artificial stoma; (7) Ordering the application of non-ionizing radiation and other potentially harmful forms of energy as specified by regulation ; (8) Prescribing, dispensing, selling or compounding drugs, or supervising the part of a pharmacy in which drugs are kept; (9) Prescribing or dispensing ophthalmic appliances; (10) Prescribing personal hearing aids; (11) Fitting and dispensing fixed and removable prostheses and dental appliances for the oral-facial complex: (12) Managing labour and conducting deliveries; and (13) Allergy challenge testing provoking significant allergic response, unless, (a) the person is a member of a regulated health profession listed in Schedule A and is specifically authorized by a valid certificate of registration issued by the College of the health profession to perform the licensed act, provided that the act is a license act of the health profession of which the person is a member; or (b) the performance of the licensed act has been delegated pursuant to section 27.03 to the person by a person described in paragraph (a). (c) deleted. 27.01A In this section (a) "dental appliance" means any device fabricated for use in or about the mouth for the purpose of replacing some or all of the teeth or tooth structure, or realigning, re-positioning or stabilizing teeth or hard or soft tissue of the oral-facial complex, or protecting teeth from abnormal function; (b) "diagnosis" means the communication to a patient or his or her representative of a conclusion as to the cause or identification of a disease, disorder or dysfunction; (c) "drug" means any substance or preparation containing any substances, (i) manufactured, sold or represented for use in, 1. the diagnosis,treatment, mitigation or prevention of a disease, disorder, abnormal physical or mental state or the symptoms thereof, in humans, animals or fowl, or 2. restoring, correcting or modifying function in humans, animals or fowl. (ii) referred to in Schedule D, (iii) listed in a publication named by the regulations, or (iv) named in the regulations, but does not include, (v) any substance or preparation referred to in subclause (i), (ii) or (iii) manufactured, offered for sale or sold as, or as part of, a food, drink or cosmetic, (vi) any proprietary medicine as defined from time to time by the regulation made under the Food and Drugs Act (Canada) that does not contain any substance or preparation containing any substance referred to in Schedule D, (vii) a substance or preparation named in Schedule C; (d) :ophthalmic appliance" means lenses, spectacles, eye glasses, subnormal vision devices, contact lenses or appurtenances thereto for the aid, correction or relief of visual or ocular anomalies of the eye; (e) "personal hearing aid" means a personal amplification device prescribed for an individual hearing impaired person, consisting of a built in microphone, amplifier, receiver and individual amplifying system, with capability for specification of gain, frequency response and output levels. 27.02 A person or corporation who contravenes section 27.01 is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or the imprisonment for a term of not more than six months, or to both. 27.04 (1) No person shall treat, offer to treat, or advise in respect of any human health condition in circumstances in which the treatment, offer of treatment or advice, or an omission there from, had resulted in harm or may result in a risk of harm. (2) Subsection (1) does not apply to a person who is a member of a regulated health profession listed in Schedule A where the treatment, offer of treatment or advice is part of the practice of the profession of which the person is a member. (3) In subsection (1), "harm" includes (a) any or increased physical or mental disease, disorder, dysfunction, injury or pain: and (b) death or earlier death. 27.05 A person who contravenes section 27.04 is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than two years, or to both. COMMENT: one must agree unhesitatingly with the Review in regarding section 27.01 as a key provision in this proposed legislation. In an endeavour to erect a fence which would keep out everybody, the College of Physicians and Surgeons of Ontario (the COPS) originally proposed for their Medicine Act some very wide ranging licensed acts. They wanted, for instance, to have "the differential diagnosis, diagnosis, assessment, or evaluation of amy human health condition". They did not get that, but the Review team has done a good job for them. They have used the simple word diagnosis, leaving that undefined in its place. BUT, the pay-off comes in the next section which has not only a similar effect, but goes further. (See 27.01A above.) If there is any loophole left by means of which anyone could carry on a therapy practice, although that person could make an examination of the patient, he or she would not be able to communicate to the patient what conclusion had been reached as to the condition, etc. Obviously, the patient wants to know what the diagnostic report is, and also what are the chances of recovery using the techniques offered. It is apparent that it would not be possible to carry on a practice in any realistic manner. However, when we examine the separate Acts for the professions, we find that they contain reference to assessment, and they carry a definition of "assessment" which is identical in each case> We find this in the Chiropody Act, the Chiropractic Act, the Dietetics Act, the Massage Therapy Act, the Medicine Act, the Physiotherapy Act to mention those which might be of interest to the reader. In each case a section sets out the scope of the assessment and the practice and, when appropriate, the licensed acts. In each case, also, a section states: "When in any proceeding an issue arises as to the interpretation of (those sections), the Court may have regard to the expert evidence adduced by the parties with respect thereto." Not all professions have licensed acts. Although they may make assessments, the dietitians and the massage therapists do not have licensed acts. The physiotherapists are licensed to perform the high-velocity, low amplitude act. This is evidently part of the price paid for "respectability" by the chiropractors that they have to hand over a share in the key part of their work. It may be inferred from the fact that the massage therapy and dietetic Acts do not license any part of the scope of practice that it would be in order for an unlicensed person to perform those acts. This is not necessarily so, as will be discussed later. Furthermore, regard this definition of "assessment": "Assessment" means the evaluation of a patient's physical or mental state in order to determine whether a treatment within the health professional's scope of practice is appropriate to the patient's condition and if so, in what manner it ought to be applied or administered, and includes communication of evaluation to the patient and his or her representative. Please note reference to "the health professional's scope of practice". In the document under scrutiny, the Review uses the term health professional for the regulated practitioner, whereas those who are not regulated are referred to as "health care providers". One speculates that it might be held that this definition applies only to the regulated practitioner. Furthermore, please note "includes communication of evaluation..." which would seem to be in possible conflict with the ban on communication of a diagnosis unless the practitioner is in fact regulated. 27.01 (2) - This would seem to effectively stop acupuncture. 27.01 (4) - This is aimed at manipulation other than by persons licensed under the Medicine or chiropractic Acts. We do not understand the reference to beyond the individual's normal physiological range. The high-velocity, low-amplitude thrust refers to the techniques of adjustment which have been in use throughout this century, but which are outdated by the techniques which use the body's natural forces. 27.01 (6) - Performing invasive instrumentation, including manual and digital instrumentation... We have tried to make sense of this, and conclude that it means use of the hands and fingers as instruments. This provision will interfere with proper examination of the patient, and possibly lead to missed diagnosis. (d) should be licensed to chiropractors - but is not - to permit examination of the prostate. (d) effectively prohibits use of enemas and colon therapy, unless done by a regulated person whose act includes license to go beyond the "anal verge". 27.01 (7) - Has the potential to ban any or all forms of electronic, electrical or radiation technologies. "Potentially harmful" is a favourite idea of the Review: it gives such scope for finding trouble for people. 27.01 (8) - Prescribing, dispensing, selling or compounding drugs... As any substance used in therapy can be described as a drug (ss 27.01A (c) above), this would appear to do away with homeopathy, botanical medicine and possibly the selling of vitamins and the like except in a pharmacy. 27.01 (13) - Allergy testing by such means as muscle strength, radiesthesia or selective eating might or might not be affected by this clause, according to interpretation. 27.01A - (c) has the potential of causing any substance, including foods, to be classified as drugs. The federal Ministry of Health has been busy strong-arming manufacturers into having their products classified as drugs, and given a Drug Identification Number (DIN), and we can look forward to an intensification of this process. It is then only a short step to making all "drugs" prescription drugs, which is good business for medical prescribers and the pharmaceutical industry. Clause (c) (V) is probably not worth the paper upon which it is printed. What is a food, what is a botanical, what is a food supplement? These people are pretty tricky with definitions and they have not finished with us yet. What is garlic or preparations made from or including garlic? Etc. 27.04 - There is probably no circumstance in which there is no potential for harm, especially when "harm" includes (and note it is not limited to) what is included in what the Review wants to pass off as a definition. 27.06 For the purpose of section 27.01 any act done by a person in the course of, (a) treating himself or herself; or (b) rendering first aid or temporary assistance in an emergency without a fee; or (c) administering household remedies to members of the person's household; or (e) engaging in a program of studies to become a member of a regulated health profession to which the act or acts are licensed, by a student under the supervision or direction of a member, provided the program is designated in the regulations passed pursuant to the Act governing the health profession as an educational program the successful completion of which qualifies persons for registration; or (e) treating human ailments by the use of prayer or spiritual means in the exercise of a religion in accordance with the tenets of an established church, if the person is an adherent of the religion; or (f) engaging in an activity exempted by regulation; or (g) deleted. shall be deemed not to be a contravention of section 27.02 or 27.04. COMMENT: Here we see some hopeful words buttered with vagueness. (b) is reasonable and unobjectionable, and so is (d) so far as it goes but you are out of luck if your educational establishment is one which does not belong to a regulated profession. (a) sounds reasonable at first, but consider: it would be virtually impossible to make a charge stick as the person is not likely to give evidence against himself. "Yes, Your Honour. I confess I did examine myself when I had a headache. I asked myself a number of questions about my condition and made an assessment and arrived at a diagnosis which I passed on from the left side of my brain to my right side. I am not quiet sure about that, perhaps it was the other way around. First, I prescribed myself a couple of aspirins, but I asserted my rights as a patient and refused to take them. I reassessed my problem and prescribed for myself 20 minutes of meditation, followed by half an hour walking by the river." Verdict: Guilty of practising without a licence. Sentence; $25,000 fine and two years (less a day) in the slammer. The most probable scenario is that he would likely find that he had difficulty in procuring the substances he wanted (homeopathics, botanicals, vitamin/mineral supplements, glandulars). Thus, the individual is legally free to diagnose, assess and treat himself... if he can find the tools and substances which he requires. If this proposed legislation is enacted, it is likely that it will become increasingly difficult to obtain those items in Ontario. It will become necessary to import them from a more enlightened province or from outside Canada, as is the case now with some substances banned from sale by the federal Ministry of Health but not from individual use. (c) is another mystery clause, requiring interpretation. First, who qualifies as a member of the person's household? Candidates would be spouse and children, in-laws by blood or marriage (how many removes do we go?), friends and employees living en famille. How does a "common law" relationship fit in here? Second, what is a household remedy? Supposing that is defined, there is still the problem of obtaining these items if all botanicals, homeopathics, vitamins, etc. are classified as drugs. Perhaps the legal draughtsmen are referring to items which would come under 27.01A (c) (v) and (vii), which means choice will be limited to officially approved remedies. Which means that the person, even if he/she can find out who is member of the household, will still be restricted in choice of remedies and thus deprived of free choice. In any event, it seems to this writer that the clause should be void of uncertainty. It is remarkable how this document will switch from such precision of wording as to amount to overkill to vague generalities, or insert qualifications, definitions and such at a distance. (e) is the one instance when a nod is made in the direction of freedom of choice. This time, the qualifiers are brought into the same clause. What is an established church? In some jurisdictions (for example, in the United Kingdom, there is an established church, the Church of England; no other church, no matter how large or small, is "established") there is a state church which is called "established", but in jurisdictions such as Canada where there is separation of Church and State here is no established church in that sense. (f) leaves open the possibility of some professions or techniques being let in by a narrow back door, and as they slop in they will be handed a stick-on label which says "activity exempted by regulation". If an :activity", such as acupuncture, has the potential of being allowed by regulation it should either be regulated as a full-fledged profession or incorporated into another regulated profession. 27.08 Subject to the approval of the Lieutenant Governor in Council, the Minister may make regulation, (a) specifying potentially harmful forms of energy; and (b) exempting persons or activities from the prohibitions contained in section 27.01(1) through (13), and attaching conditions to any such exemption. COMMENT: This provides the Minister with the opportunity to make regulations which could work for or against alternative and/or supplementary medicine. With alternative and/or supplementary medicine. With sufficient political clout, this could give opportunities for advancement. Without that clout, there would be no gains. The opposite also applies, of course. 27.09 Where the Minister proposes to make a regulation pursuant to section 27.08, the Minister shall refer the proposal to the Advisory Council and shall give written notice thereof to the Council of every health profession listed in Schedule A, and every Council with respect to such proposal within 30 days of the notice or within such other period as the Minister may specify. COMMENT: This is very neat. Everything is clear, above-board, and democratic, It just happens that a big part in deciding who shall be let into the privileged club of the regulated will be played by those already in. It needs no imagination to be clear who will oppose those professions which are perceived as threat to the medical monopoly. Pressure should be exerted to see that this section is amended, and a more open method used. 29.03 No person shall (a) hold himself or herself out as, (i) registered by or with a College, or (ii) the holder of a certificate of registration issued by a College, or (iii) a member of a College; or (b) use a title protected in any Act governing a health profession or group of health professions; or (c) take or use any name, title or description implying or calculated to lead people to infer that the person is qualified or recognized by law as a member of a health profession; unless the person is authorized to do so pursuant to an Act governing a health profession or group of health professions. COMMENT: The first two parts of this section are unexceptional and are the usual thing required to protect a professional title. However, clause (c) is a different matter. The significance of this clause cannot be emphasized too strongly. It is another example of the Draconian and overwhelmingly all-enveloping nature of this proposed legislation. The Review says in a not: "The majority of participants said... the additional restriction should apply to all health professions. The Review agrees with this view... It is important for members of the public to be able to distinguish all regulated health professionals." This provision could lead to all kinds of trouble in finding a designation for a health care person which did not suggest he or she is engaged in a health profession. Of course, the Review takes the impertinent, and incorrect, view that only those who are regulated are health professionals. All others are relegated to being health care providers. Perhaps this demeaning description will have to be incorporated into the occupation title if a person is to avoid being found guilty and subject to another penalty, in this case $5,000 for the first offence, and $10,000 thereafter. 29.08 No person, association or corporation, except those Colleges designated in Schedule A to this Act, or except as provided by another statute, shall pass himself, herself or itself off or hold himself, herself or itself out in a manner that implies or is calculated to lead people to infer that the person or association is governed by this Act or regulates health care providers according to law. COMMENT: This is another section which could hold dangers for professional associations or schools trying to carry on a legitimate function. All trainers, teaching establishments and professional associations will need to take professional legal advice to ensure that they do not fall into a trap. The penalty: $10,000 for first offence, with a fine of $20,000 for each subsequent offence. 29.10 Any person who contravenes an order of a Council, Discipline Committee or the Health Professions Board restricting or prohibiting the disclosure, publication, or broadcasting of matters, information or identities, is guilty of an offence and on conviction is liable for the first offence to a fine of not more than $10,000 and for each subsequent offence to a fine of not more than $20,000. COMMENT: The final note of the Review team explains why this section was added. It refers to "restricting publication or broadcasting of matters disclosed...", but no reference is made to confidentiality. This is the note: "New; added at the suggestion of participants who pointed out the need for and enforcement power relating to orders restricting publication or broadcasting of matters disclosed at Council, Discipline Committee and Health Professions Board proceedings." So much for freedom of information, so much for the liberty of the individual, so much for freedom of choice. CONCLUSIONS The comments in this paper are not, and should not be construed, as professional advice. For legal advice, consult a lawyer. This work has been prepared as a working paper for the ACCPM as one of the tools which it will use in deciding its policy, and possibly its strategies and tactics, in relation to these legislative proposals. As such, it has attempted to point out matters of the greatest importance, and to point at danger signs, whilst trying to put the whole matter into the perspective of events connected with the health scene. What has been happening in Canada has also been going on in the United States, in Europe and elsewhere. Matters such as control over foods, supplements and so on, as well as attempts to wipe out whole professions, have cropped up around the world and continue to do so. This is just one aspect of a wide-spread and ongoing struggle between the old ways and the new paradigm. A similar struggle in the State of Washington led to an important new law for naturopathic medicine which resulted in their being in an improved position, not obliterated. A similar situation occurred in South Africa when an attempt was made to wipe out all alternative or complementary medicine. A struggle led by the Homeopathic and Chiropractic associations resulted some eight years ago in a situation where the alternative professions are on a parity with the conventional medical profession. It follows that we need to look hard at all that is going on now, and find a way to bring the whole of the thinking public into the struggle. It is not just the professionals who are in danger of losing their livelihoods (that is important to them personally, and it is important to those who will be deprived of their services) but every citizen will be worse off for losing a bit more liberty. Governments and dominant medicine appear to treat alternative professionals as some kind of weirdos, of no-account. They seem to have overlooked the fact that millions of people, and in ever- increasing numbers, are turning to these professionals, and they are prepared to put their money into that care, as mostly it is not covered by insurance schemes. Those of us who care about alternative, complementary and preventive health care and teachings should remember that we are not a small isolated group. Let us get the public on our side. What are the prospects for the alternative health care professions if this legislation goes through? The answer, in two words, is NOT GOOD!! The ACCPM deduces from its study of the proposals, and offers for the consideration of its readers, the following: Whilst it may not be an offence to diagnose one's self or members of one's household (undefined), it will be a close call, and effectively every person in this province will be affected, and restricted in free choice of health care. If the powers that be are allowed to get away with this, the net will tighten. From the study of the proposals, we believe that naturopaths, nutritionists, homeopaths, herbalists, rolfers, acupuncturists, reflexologists, etc. will be wiped off the professional map in Ontario. We also believe that mutual support activities in groups of patients will be found to be illegal (unless they are all related and/or live together!) Furthermore, we believe that multi-level marketing concerns which deal in nutrients and supplements will probably be adversely affected, as will health food stores. With more and more "substances" being declared to be "drugs" it will not be long before only the pharmacist will be able to sell/dispense these items. For some time there have been rumours of moves to put all vitamins on prescription. The time will soon come if this legislation goes through, when if you want these items you will have to get them for a more enlightened province or from outside the country. What will happen to the hundreds of practitioners? Some will retire. Some will change to another occupation. All those will have sacrificed many years of education and many more years of valuable and irreplaceable experience on the altar of medical monopoly. Others will relocate to other provinces, to the United States or to some other countries where freedom of choice in health care still prevails. In the name of defending the public good, they are at it again, trying take away our liberty. We have to fight back with care, with cunning, with all the help and advice we can get, with courage and determination. Whilst our ultimate victory is inevitable, we want to win now, in our lifetimes. We have seen it done elsewhere.


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