Speaker's Corner: Legal implications of the changing health system

The future of our health-care system is an ongoing discussion in Canada, and there’s no doubt that the medical landscape and how services are delivered to the public are changing.
Our aging population and the increased longevity of seniors are putting pressures on the system. As a result, governments, health-care professionals, and their regulatory bodies are all looking for ways to make the system more efficient, cost-effective, and responsive to the needs of patients.

One of the strategies for delivering better health care is to increase the scope of responsibility 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 offer, including prescribing and dispensing medication.

While such changes should make the health-care system more cost-effective and responsive, legal implications are starting to emerge.

The Ontario College of Pharmacists recently proposed a regulation to expand the scope of services that pharmacists, pharmacy technicians, interns, and students 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 first time allow them to prescribe medication to deal with the effects 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 patients 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 Ontario 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 defibrillators, set fractures, place a cast, and order X-rays and CT scans.

It comes on the heels of yet another regulation that for the first time allows optometrists to prescribe medications for their patients to treat everything from bacterial 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. This may be one reason why the American Bar Association is holding its annual meeting in Toronto this summer.

Americans are facing their own health-care crisis and are looking at other models for delivering effective and efficient services.

The trend towards broadening the responsibilities of various health-care professionals has been brewing for several years.

For example, the Ontario government opened the door for the regulation of traditional Chinese medicine and acupuncture in 2006.

In 2007, it created legislation that paved the way for four new regulated health professions — kinesiology, homeopathy, naturopathy, and psychotherapy — along with a new class of people, pharmacy technicians, who can dispense drugs.

The following year, the Health Professions Regulatory Advisory Council wrote to Ontario’s minister of health that “a broader scope for nurse practitioners will increase the availability and

efficiency of patient care and lead to better and more comprehensive, co-ordinated services.” In 2009, it observed that “the recognition of the proficiency of many health professions in numerous aspects of drug therapy is a growing trend” and recommended 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 medications.

Specifically, it felt that dental hygienists, naturopaths, pharmacists, optometrists, and respiratory therapists should be able to prescribe drugs and that there should be an expansion of the range of medications prescribed by chiropodists, podiatrists, nurse practitioners, and midwives.

While many people support the trend towards increasing the ability of professionals 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 insufficient 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 prescribe medications, many physicians are concerned about the implications of bypassing the traditional gatekeeping role of doctors and pharmacists.

Wherever these lines are drawn, regulatory 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 practitioners working in private clinics has been optional until now. The 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.

The 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 number of new and difficult issues when the first traditional Chinese medicine practitioner faces allegations of professional misconduct for breaching the standards of practice.

There 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 practice for many in the field, 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 Righton LLP in Toronto. He leads the firm’s health law and professional regulation and discipline groups.

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