Law Times

Page 22 March 30, 2015 • Law Times www.lawtimesnews.com Health sector transparency Colleges ready to disclose more information By shannon Kari Law Times he more than two dozen colleges that regulate health profes- sions in Ontario are in the process of making more information about their practi- tioners available on their public registries within the next few months. The move to provide more information began with the formation of an advisory group in 2012 by six of the largest col- leges. Last fall, provincial Health Minister Eric Hoskins wrote to all of the regulators asking for responses that outlined the spe- cific steps they planned to take to improve transparency. Since that time, some regu- lators, such as the College of Pharmacists and the Royal Col- lege of Dental Surgeons, have amended their bylaws to imple- ment new measures. Others, such as the College of Physicians and Surgeons, will be meeting later this spring to vote on pro- posed changes after its consulta- tion period ends on April 1. While the pace of implement- ing the new measures has picked up, what's not clear is exactly how much more information the colleges will actually disclose under the new policies and how that might affect the disciplinary process. "I think this is a significant change," says Lonny Rosen, a partner at Rosen Sunshine LLP in Toronto who specializes in health law. The first phase of the chang- es dealt with an agreement to disclose criminal convictions, Health Insurance Act offences, and any bail conditions. The colleges are now consid- ering more contentious changes under the second phase that would disclose criminal charges, licences in other jurisdictions, and disciplinary findings in other areas to the public. As well, the colleges would also make so- called cautions-in-person and "specified continuing education and remediation program" or- ders public. The most recent annual re- port from the College of Physi- cians and Surgeons states that of the more than 2,100 complaints reviewed by its inquiries, com- plaints, and reports committee in 2013, only seven per cent result- ed in oral cautions or continuing education orders. It ordered no action in almost 60 per cent of the cases. Com- plaints referred to the disciplin- ary committee made up two per cent of the total. The college won't make cau- tions-in-writing public as part of the proposed changes and they'll come under the advice or recommendations category, ac- cording to spokeswoman Kath- ryn Clarke. "Not all colleges had, in the past, a caution-in-writing outcome. Work has been under- way to bring uniformity to the outcome terminology used by health colleges," says Clarke. If the proposed changes had been in place in 2013, the college would have made 80 cautions-in-person and 76 continuing education and remediation orders against doc- tors public. While they make up a small percentage of the outcomes, disclosing these orders could alter the disciplinary process, according to Rosen. "It will sig- nificantly impact how a profes- sional responds," he says. A cau- tion isn't a disciplinary finding but is rather an effort to educate the health professional. "It is not about publicly shaming a mem- ber," says Rosen. The screening committees may also be more leery of issu- ing a caution-in-person if the colleges have to make them pub- lic. The push for more transpar- ency is understandable, says Rosen, but he's not sure all of the changes are necessarily going to improve the regulation of health professionals in the province. "The fact that the public is interested does not always mean it is in the public interest," says Rosen. LT FOCUS REASONABLE DOUBT? If you're building your case with anything other than Canada's new and most comprehensive resource for criminal cases and expert commentary, it's only natural to wonder if you've missed something. NEW! WestlawNext® Canada CriminalSource™ Go to court with confidence. westlawnextcanada.com/criminalsource T ting, where you can consult with someone who knows the prod- uct," says Thorne. In addition to deciding exactly who can produce for the medical marijuana community, there's still the unresolved issue of what form cannabis must be in to gain the le- gal approval of the federal govern- ment. The Supreme Court of Canada heard arguments on March 20 in an appeal by the federal govern- ment over a decision that found a prohibition on oral or topical can- nabis products, such as oils, was unconstitutional. The B.C. Court of Appeal ruled 2-1 last year in R v. Smith that the restriction was arbitrary and there was no evidence that cannabis use in edible products, teas or oils presented any greater a risk than smoking dried marijuana. One of the interveners at the Supreme Court representing three HIV/AIDS organizations argued the onus is on the state if the use of a therapy might attract criminal sanction. "If a patient sincerely be- lieves that the use of an alternative unapproved drug therapy might alleviate their pain and suffering, section 7 of the Charter prevents the state from criminalizing that patient's choice of medication," wrote lawyer Paul Burstein in ar- guments filed with the court. The federal government dis- agrees. There's no right under the Charter of Rights and Freedoms "to obtain or produce drugs based on a subjective belief in their ther- apeutic value," wrote Paul Riley and Kevin Wilson, two govern- ment lawyers involved in the case. The Supreme Court's deci- sion in Smith may turn out to be the most significant court rul- ing related to medical marijuana because it could significantly ex- pand the industry, Thorne sug- gests. "If we are talking about a medical product, it should be available in the form that is most effective," she says. LT Marijuana litigation Continued from page 21

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