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.