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Law Times • June 27, 2011 G20 report shows watchdog's value the hands of the very institutions and authorities we rely upon to uphold the law. Th e ripples from the G20 A summit and the actions of both the province and the police are still reverberating today, but we're no closer to closure. Numbers released by the gov- ernment last week paint a sordid picture of overreaction showing police used their power of deten- tion as a blunt instrument and wielded it in a way we expect of dictators in other countries. Of the 1,100 people arrested and detained over the infamous weekend, only 317 were charged criminally in relation to the sum- mit. Of those, charges against 187 people were withdrawn, stayed or dismissed, presumably because there was no evidence or hope of conviction. Th at's a 59-per- cent dismissal rate — double the norm. But when all of those arrested are factored in, it's an 89-per-cent dismissal rate. On the same day those num- bers became public, Ontario om- budsman André Marin took an- other shot at the G20 debacle as he tabled his annual report. "Exactly a year ago this week, at the G20 summit in Toronto, we saw a massive violation of civil rights on our streets," he said. Marin cited secretly passed amendments to the obscure Public Works Protection Act as creating confusion both among police and members of the public who dis- covered their rights weren't what they thought they were. "Just think how much dif- ferent it would have been if the government had been open about this," said Marin, adding the pro- visions would likely have been challenged and found contrary to the Charter of Rights of Free- doms. "Ultimately, that is what happened after our investigation; the government is scrapping the law and in future will ensure the public is warned if there are any changes to police powers." In his report, Marin called for greater transparency across all levels of government. Times have changed, he said, noting we live in an age in which nothing hap- pens without it being immediately available on Twitter, Facebook or YouTube. In fact, Marin, who has been somewhat of a thorn for the pro- vincial government for the last six years, said there's no reason why information shouldn't be available in real time without the need for a freedom-of-information request. "I'm calling on the government to embrace something that I think is shaping the future of our de- mocracy," said Marin. "I'm talking about the movement toward open government. Today, the expecta- tion is that information from the government should be available in real time — without asking. Public services should be open to the pub- lic by defi nition and by default." Marin defended his stance, year ago, Canada's big- gest city underwent a transformative shock at Inside Queen's Park By Ian Harvey noting most of the complaints coming to his offi ce deal with secrecy. "Th e ombudsman's job is to bring those problems to light and propose solutions," he said. Issues around secrecy permeate the broad- er public sector, so much so that Marin's offi ce turned away 1,963 complaints about those institutions and organizations last year because they were outside his jurisdiction. Th e G20 complaints are what hit home, of course. If we can't trust authorities to act within the law, how can we have faith in any level of government? Who ordered the kettling in the pouring rain? Why did police fail to act against those causing the vandalism? Why has it taken so long to identify police of- fi cers involved in beating people? Th ankfully, Marin's role is to be the eyes and ears of the public, and we owe his offi ce our thanks and respect for carrying out his mandate with such passion and diligence. In the last year, Marin's offi ce investigated 14,531 complaints. From those and other issues over the years, he has reported some disturbing trends. Th ey include: • Th e use of excessive force by correctional offi cers on in- mates. • Poor service from the Offi ce of the Public Guardian and Trust- ee in dealing with the fi nances of incapacitated people. • Secret meetings by local health information networks. • Lack of inspections in long- term care homes. • Th e Ontario Lottery and Gaming Corp.'s failure to ini- tially investigate insider wins by ticket sellers. Some of those inside govern- ment might consider Marin to be a pain. To the contrary, it's Marin's eff orts within the man- date of the Ontario Ombudsman Act that keep the government, its agencies, and civil servants on the right track. For about $10 million a year and with less than 100 staff , Marin looks at some 500 provincial min- istries, Crown corporations, tribu- nals, agencies, boards, and com- missions. In the meantime, while the G20 involved an egregious and obvious abuse of authority, it opened our eyes to the reality that our government and its resources are prone to excesses and incom- petence if left unchecked. Th e ombudsman's offi ce is our last line of defence. Its budget is money well spent to protect us all. Ian Harvey has been a journalist for 34 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. COMMENT PAGE 7 Legal implications of the changing health system BY MARC SPECTOR By Law Times ical landscape and how services are deliv- ered to the public are changing. Our aging population and the increased T longevity of seniors are putting pressures on the system. As a result, governments, health-care professionals, and their regula- tory bodies are all looking for ways to make the system more effi cient, cost-eff ective, and responsive to the needs of patients. One of the strategies for delivering bet- ter health care is to in- crease the scope of re- sponsibility for health- care professionals. Recent amendments to legislation, along with some new proposals for change, broaden the range of services that non-physician health-care providers can off er, including prescribing and dis- pensing medication. While such changes should make the health-care system more cost-eff ective and responsive, legal implica- tions are starting to emerge. Th e Ontario College of Pharmacists recently proposed a regulation to expand the scope of services that pharmacists, pharmacy technicians, interns, and stu- dents can provide. Although the college has advocated for putting pharmacists on the same footing as medical doctors when prescribing drugs, this regulation, which is narrower in scope, would for the fi rst time allow them to prescribe medication to deal with the eff ects of nicotine withdrawal. It would also allow pharmacists to take blood and inject patients with needles. Also, the Ontario government recently proposed a regulation that would allow nurse practitioners to admit hospital pa- tients by July 1 of this year and to discharge them as early as July 1 of next year. Further, the Ontario government is considering a proposal by the College of Nurses of On- tario that would put nurse practitioners on equal footing with doctors when it comes to prescribing medications and would remove restrictions on their ability to use defi bril- lators, set fractures, place a cast, and order X-rays and CT scans. It comes on the heels of yet another regulation that for the fi rst time allows optometrists to prescribe medications for their patients to treat everything from bac- terial eye infections to glaucoma. In the past, an optometrist had to send patients to their family physician, an emergency room or an ophthalmologist to prescribe even the most basic of medications and topical creams. While Ontario is one of the last provinces to enact this kind of legislation for optometrists, the new regulation is the widest in scope in Canada. What's happening in Ontario is being watched closely across the country as well as in the United States. Th is may be one reason why the American Bar Association is hold- ing its annual meeting in Toronto this sum- mer. Americans are facing their own health- care crisis and are looking at other models for delivering eff ective and effi cient services. Th e trend towards broadening the re- sponsibilities of various health-care profes- sionals has been brewing for several years. For example, the Ontario government opened the door for the regulation of trad- itional Chinese medicine and acupuncture in 2006. In 2007, it created legislation that www.lawtimesnews.com he future of our health-care system is an ongoing discussion in Canada, and there's no doubt that the med- paved the way for four new regulated health professions — kinesiology, homeopathy, naturopathy, and psychotherapy — along with a new class of people, pharmacy tech- nicians, who can dispense drugs. Th e following year, the Health Profes- Speaker's Corner sions Regulatory Advisory Council wrote to Ontario's minister of health that "a broader scope for nurse practitioners will increase the availability and effi ciency of patient care and lead to better and more comprehensive, co- ordinated services." In 2009, it observed that "the recognition of the profi ciency of many health professions in numerous aspects of drug therapy is a growing trend" and rec- ommended that of the 26 regulated or soon- to-be regulated health professions in Ontario, nine of them ought to have an expanded role in prescribing medica- tions. Specifi cally, it felt that dental hygien- ists, naturopaths, pharmacists, optometrists, and respiratory therapists should be able to prescribe drugs and that there should be an expansion of the range of medications pre- scribed by chiropodists, podiatrists, nurse practitioners, and midwives. While many people support the trend towards increasing the ability of profes- sionals to deliver better and timely health care, there's no consensus on the limits that should be placed on them. For example, the Ontario Medical Association criticized aspects of the proposed expansion of the traditional role of nurse practitioners. With respect to the ability of nurse practitioners to set and cast fractures, the OMA felt they had insuffi cient knowledge and clinical experience to perform these tasks without supervision by a physician. Moreover, while the College of Nurses has pushed for the ability to openly pre- scribe medications, many physicians are concerned about the implications of by- passing the traditional gatekeeping role of doctors and pharmacists. Wherever these lines are drawn, regu- latory colleges need to play a greater role in overseeing patient care, and legislation needs to become more rigorous. To cite one example, liability insurance for nurse prac- titioners working in private clinics has been optional until now. Th e new proposals for expanding the scope of practice of many regulated health-care practitioners include a requirement that insurance be mandatory for all of them. Th e regulatory colleges will also have to come up with new standards of practice that they didn't have to consider before. For example, lawyers, regulatory bodies, and health-care professionals from a variety of backgrounds will have to deal with a num- ber of new and diffi cult issues when the fi rst traditional Chinese medicine practitioner faces allegations of professional misconduct for breaching the standards of practice. Th ere will be questions about what those standards are, how they have been developed, how they should be interpreted, and whether or not there are competing schools of thought. With new colleges and health professions emerging and the increasing scope of prac- tice for many in the fi eld, it will certainly be an interesting time to be a lawyer who focuses on the regulation and discipline of these practitioners. Marc Spector is a partner with Shibley Right- on LLP in Toronto. He leads the fi rm's health law and professional regulation and discipline groups.