Proposed B.C. legislation would bring in new process for complaints against health professionals

By Ian Burns

Law360 Canada (October 26, 2022, 3:07 PM EDT) -- British Columbia is proposing a major revamp of its legislation governing health professionals, creating a new process for complaints of professional misconduct which allows for evidence to be presented by affidavit and cross-examinations to be done in writing.

The new Health Professions and Occupations Act was introduced by B.C. Health Minister Adrian Dix Oct. 19. If passed, it will continue finalizing the amalgamation of the province’s health regulatory colleges from 15 to six, create an oversight body to conduct routine audits of the colleges and set standards on policy and practice, and revamp the complaints and adjudication process. The process for complaints will separate the investigation stage, which will remain with colleges, and the discipline stage, which will be supported by the oversight body.

Dix called the legislation the “most significant changes to oversight of regulated health professions in British Columbia’s history.”

“These changes will streamline the process to regulate new health professions, provide stronger oversight, provide more consistent discipline across the professions, act in the public interest and protect patient care in the province, while also laying the groundwork to further reduce the total number of regulatory colleges,” he said in a statement.

Under the new legislation, regulated health professionals and occupations will be required to embed anti-discrimination measures in the delivery of health-care services, with discrimination becoming professional or actionable conduct. Information about all agreements made between colleges and registrants will be public.

Colleges will fund counselling for victims of sexual abuse and sexual misconduct, and victims will be able to recover costs from registrants who cause harm. And the board members of regulatory colleges will be appointed via a competency-based process, a step the province said will ensure board members do not feel beholden to the people who elected them.

David Martin, associate counsel with Miller Thomson LLP in Vancouver, said the new legislation will likely not affect the average patient going to their doctor too much, but noted two significant changes to the discipline process — namely, permitting evidence in hearings to be presented via affidavit, and allowing for cross-examination to be done in writing.

“That seems to be very extraordinary, because credibility is usually significant in discipline cases where the registrant is denying what the complainant is saying,” said Martin, whose practice is focused on administrative law relating to self-governing professional bodies. “It would cause me a lot of angst as a practitioner, because it would be contrary to the usual manner by which lawyers approach the complainant on credibility.”

Lawyers who work for the health professions are going to be very busy with the new legislation, said Martin.

“And then we will have the regulations coming at a later stage — and the regulations normally are longer than the statutes,” he said.

The Health Professions and Occupations Act has passed first reading and is currently before the B.C. Legislature.

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