The Inspection Power Under the Health Professions
Act: A Brave New World
James Casey, Q.C.
Introduction
In 2008 the Alberta legislature passed the Health Professions Amendment Act, 2008 that, in
part, created a power of inspection for the health profession regulatory colleges. The legislation
has not been proclaimed so is not yet in force. As well, Government needs to pass a regulation
before the inspection power can be “operationalized.”
As I read through the legislation for the first time, I was left with three powerful impressions.
Firstly, I was struck by the breadth and unconstrained nature of the power. The legislation
has none of the checks and balances that are common in the design of other regulatory
mechanisms under the HPA. Secondly, I concluded that the inspection power could be a very
useful regulatory tool for some colleges. Thirdly I concluded that it would be critically important
that colleges intending to utilize the inspection power develop policies and procedures to ensure
that the power is utilized in an appropriate fashion.
James Casey, Q.C.
Many regulatory colleges were surprised by the introduction of the legislation since there had
been little advance notice or policy discussion about the ramifications of a general power of
inspection. Governmental motivation for introducing this new regulatory tool remains unclear.
Some have speculated that it is another legislative response to acute concerns about infection
prevention and control (“IPC”). The legislation may be designed to ensure that regulators have
all the tools and flexibility they need to address IPC issues with their members.
When can the inspection power be utilized?
The inspection power is drafted in the widest possible terms and would encompass almost any
potential regulatory concern. Section 53.1 provides that Council may appoint inspectors for
the purpose of determining whether regulated members are complying with the Act, bylaws,
standards of practice, and code of ethics.
No complaint is required prior to conducting an inspection. The regulator could, for example,
inspect groups of practitioners engaged in high-risk practices. Or the regulator could inspect
the practices of professionals about whom it was concerned but who had not been the subject of
a complaint. In other words, regulators will have the flexibility to design an inspection program
that meets their needs provided the objective of the overall program is to determine whether
regulated members are complying with the Act, bylaws, standards of practice, and code of
ethics.
What are the inspection powers?
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All of the inspection powers are subject to the regulations so the content of those regulations will
be very important. The inspectors can require any person to answer questions (including under
oath); inspect documents, substances, and things; copy documents; examine and perform
tests on substances and things; and at any reasonable time enter and inspect any place where
regulated members provide professional services except for private dwellings and publicly
funded facilities. The inspection powers can be enforced on application to the Court, and a
refusal to comply with the inspectors’ requests is considered to be unprofessional conduct.
Within 90 days of the inspection, the inspector is to report to the regulated member and to the
registrar (or to the Inspection Committee if one is established). The registrar (or the Inspection
Committee) may refer the matter to the Complaints Director if the regulated member refused
to cooperate, provided false or misleading information, is incapacitated, or the investigated
member’s conduct constitutes unprofessional conduct.
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Inspection Powers
If the Registrar (or the Inspection Committee) is of the
opinion that the unprofessional conduct was “minor in
nature”, the registrar may direct the investigated member
to take “specified actions” instead of making a referral to
the Complaints Director. This is remarkable since an
investigated member can be directed to take specified
actions without any of the checks and balances typically
associated with an investigation and a hearing. Refusing to
comply with specified actions is defined to be unprofessional
conduct and the matter must be referred to the Complaints
Director. A Hearing Tribunal could then conduct a hearing
and sanction the member for refusing to comply.
Comparison with professional conduct and practice
visit powers
Each of these processes has its own place but in some
circumstances there may be advantages to pursuing one over
another. While the inspection power is largely unconstrained
in the legislation, colleges can expect the Courts to ensure
that regulatory authority is not exercised in an unfair way
or for improper purposes. For colleges considering policies
and procedures for the inspection power, any member of our
Professional Regulatory Group can provide guidance on the
processes that will meet your regulatory objectives while still
being procedurally fair to your members.
DISCLAIMER
this article should not be interpreted as
providing legal advice. Consult your legal adviser before acting on any of the
information contained in it. Questions, comments, suggestions and address
updates are most appreciated and should be directed to:
The Labour and Employment Group
Edmonton 780-423-3003
Calgary 403-260-8500
As can be seen from a review of the chart below, there are
some obvious parallels between the new inspection powers
and the existing professional conduct and practice visit
powers. A comparison is useful to determine the relative
advantages and disadvantages of each. There are certainly
fewer restrictions on the inspection power. However, it should
be borne in mind that the regulations being developed for
the inspection process may impose further restrictions.
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REPRINTS
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Professional Conduct
Process
Practice Visits
Inspection Process
Restrictions on initiation of
process
Process can only be initiated if
there is a written complaint or
if the complaints director has
reasonable grounds to believe
the investigated member has
engaged in unprofessional
conduct.
A profession’s regulation may
address the criteria for practice
visits.
No restrictions.
Procedural Restrictions
Many procedural restrictions
and requirements in HPA.
Moderate restrictions in HPA.
Very few procedural
restrictions.
Scope of investigatory power
Broad power of investigation.
Broad power of investigation.
Broad power of investigation.
Confidentiality Provisions
No express restrictions but can
only disclose for the purpose of
the investigation and hearing.
Very strict confidentiality
provisions in section 52 HPA.
No express restrictions but can
only disclose for the purpose of
the inspection proceedings.
Statuatory duty to cooperate
on member
Yes
Yes
Yes
Imposition of orders
Hearing Tribunal can impose
orders after hearing.
Competence Committee
can impose orders pursuant
to regulation. Matter must
be referred to Complaints
Director if lack of competence
that cannot be remedied
through competence
program, incapacitation, or
unprofessional conduct that
cannot be remedied through
competence program(s.
51.1(2)).
Registrar or Inspection
Committee can impose orders
without a formal hearing where
unprofessional conduct minor
in nature. More serious matters
referred to C.D. for discipline
process and ultimately Hearing
Tribunal can impose orders.