More than 400 doctors attend Bill 36 HPOA Webinar by Doctors of BC

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Sent by email

To: President, Doctors of BC

cc: Communications, Doctors of BC

Subject: Doctors of BC need to be stronger patient and doctor advocates

Dear Dr. Greggain,

With the headline news over the last few days, it is apparent that the BC Healthcare system is on fire on multiple fronts. As I appreciate that many doctors such as the Surrey ER doctors are speaking out about their failing ER rooms, the previous BCCA Head is speaking out about the chronic failure of addressing cancer treatment wait times, and the radiation therapists are discussing the lack of therapists without any long term solution, the only voice that is absent is from the Doctors of BC. At a time when the whole system is combusting, how is the Doctors of BC responding? "Working with government" is no solution as it is clear that the government has no clue how to get out of the mess they created.

I have several questions:

1. Is the lack of hospitalists the effect of the dramatic boost in FP earnings (LFP) such that the hospitalists have abandoned their posts and are returning to family practice? If that is correct, then to bring back the hospitalists should the government cancel the LFP method of reimbursement?

2. Why is Adrian Dix so ideologically opposed to bringing back unvaccinated healthcare workers? The WHO says the pandemic is over, the US government also agrees with this. The reasons why are that the Covid vaccine is not effective in preventing the disease nor its transmission. In fact, healthcare workers who have been vaccinated are more likely to carry the virus, and can get recurrent Covid infections. Except for Nova Scotia, BC is the only other province in Canada that is an outlier here.

Unvaccinated healthcare workers including those who took early retirement (offer them free registration and full restitution of privileges) number in the thousands (between 6,000-8,000). How many healthcare workers are we short? Surely, this can help, and will not cost the government anything except their pride.

3. Why has Adrian Dix gone against his principle of only public universal health care by sending thousands of British Columbians to WA state where they will receive private healthcare? Doesn't he know that those BC patients may be treated by unvaccinated healthcare workers since they have dropped their mandates?  Why does the Doctors of BC remain silent over this when there are thousands of BC healthcare workers who are highly competent, willing and able to work? Why doesn't the Doctors of BC call out this hypocrisy?

4. Why does the government insist on ramming through "Bill 36" (Health Professionals Occupations Act) at a time when the healthcare system lacks doctors and all other types of health professionals? What create more stress in the system?

5. If "Bill 36" was based on the Cayton Report, there are a number of concerning issues based on that report:

Cayton Report Questions

Question #1:

Page 69 states:

"I consider first, changes that might be made to the Health Professions Act to improve public protection and create a more efficient and flexible statutory framework without changing the structures by which regulation is currently delivered"

What structure of regulation was maintained between the HPA and HPOA? What structure was changed and why was it changed when the report stated it did not need to?

Question #2:

Page 71 states:

"I am also mindful that the recommendations I make here follow immediately from my review and assessment of the CDSBC. I have been careful not to let the particular difficulties that the CDSBC has experienced colour my proposals for reform except where I consider the HPA contributes to those difficulties. There are 21 separate Colleges, with no doubt their own strengths and weaknesses. That there must be significant variation given their very different size and resources is part of the problem with the HPA, which is overarching legislation applied to very different professions and colleges. I have tried not to generalise from the CDSBC to the colleges as a whole."

If the Cayton Report is not generalizable to all 21 separate Colleges, why was Bill 36/HPOA generalized to include them all?

Question #3:

Page 72 states:

Very frequently whether a profession is regulated by statute or not will depend on history, geography and politics. Rarely does it depend on a proper assessment of risk of harm or an evaluation of the costs and benefits to the public."

Bill 36/HPOA states numerous times that risk and/or harm to public assessments will be conducted at the discretion of the superintendent, health professions review board, minister, etc. If the Cayton Report states this is a rare occurrence what was the importance of that being a common theme in Bill 36/HPOA?

Question #4:

Page 73 states:

"First, I suggest changes to the Health Professions Act itself. These would change the way in which the Act directs and enables the colleges but would not change the overall structure of professional regulation except insofar as the colleges chose, as the nursing colleges have done, to amalgamate."

Why was this suggestion not adhered to?

Question #5:

Page 74 states:

"Colleges need a clear mandate prioritizing patient safety and the clinical competence and ethical conduct of registrants. The duty of regulatory Colleges should be amended to give priority to the safety of patients ... A mandate of this nature would ensure that regulatory colleges were focused primarily on safety, on standards of clinical care and on the health needs of patients."

Since the report states Colleges simply needed a more clear mandate prioritizing patient safety couldn’t this have been achieved without Bill 36/HPOA? If not, why not?

Question #6:

Page 74 states:

"The HPA is ambiguous in its use of 'members' and 'registrants'. The concept of membership has led to many misunderstandings about the nature of professional regulation. The idea of membership should be discarded and replaced throughout with 'registrant'."

Since the report states Colleges needed to replace ‘members’ with ‘registrants’ couldn’t this have been achieved without Bill 36/HPOA? If not, why not?

Question #7:

Page 74 states:

"Unlimited self-regulation has in general proved itself unable to keep patients safe or to adapt to changing healthcare provision and changing public expectations."

What are specific examples involving the CPSBC where self-regulation has resulted in public harms and/or safety concerns? What are specific examples involving the CPSBC where they have been unable to adapt to healthcare provisions and public expectations?

Question #8:

Page 74 states:

"It would be beneficial to move to fully appointed boards combining health professionals and members of the public in equal parts. However, the appointment process as currently operated in British Columbia is not independent, transparent, competency based ... I suggest as an interim measure that colleges introduce an effective nomination process for professionals standing for election to the board."

Since the report states Colleges needed a change to their appointment process couldn’t this have been achieved without Bill 36/HPOA? If not, why not? Were any Colleges allowed a trial period of the suggested interim measures? If not, why not?

Question #9:

Page 75 states:

"The Government should consider the process for the appointment of public members so that it is more transparent, with public criteria and competencies for appointment and attention paid to the skill mix on individual boards."

Section 345(2)(a)(b)(c) of the HPOA states "The minister may reject a recommendation of the superintendent and request a new recommendation if the minister is of the opinion that doing so is necessary to ensure that board members will, collectively, have the education, training, experience and other qualifications that are necessary or desirable, to ensure that boards have sufficient members who are representatives of the public"

If the minister can unilaterally reject a recommendation from the non-partisan superintendent, how is this transparent, fair, democratic, and not politically influenced?

Question #10:

Page 75 states:

"The Board should be removed from any involvement in complaints and discipline. Inquiry committees and disciplinary panels should be independent, separately appointed and should have regular training and appraisal."

Section 444(2) of the HPOA states: "The minister may appoint the director of discipline in accordance with the Public Service Act"

If the minister can unilaterally appoint a director of discipline, how is this a non-partisan, independent appointment process?

Question #11:

Page 76/77 states:

"Publication is a difficult part of the process for registrants and is often contested. The controversy and perverse incentives created by the link between serious matters and publication of consent orders or undertakings creates unnecessary cost, delay, and uncertainty. Overall, it is difficult to discern any benefit to the public."

Since the report states it is difficult to discern any benefit to the public with respect to complaint publication why does the HPOA state:

Section 213(1)(b): "The minister may, in a designation regulation, make regulations respecting the types of information that must, or must not, be provided by regulated health service providers to patients or the public"

Section 255(1): "A registrar, investigation committee or health occupation director may disclose [to the public] that a regulatory complaint has been received"

Section 255(2)(a)(b): "The director of discipline may disclose [to the public] that a citation has been issued with respect to a regulatory complaint if a person has requested the disclosure, and the respondent has been served with the citation."

Section 255(4)(a)(b): "A registrar, an investigation committee, a health occupation director or the director of discipline may disclose [to the public] protected information under this section if, in the opinion of the person making the disclosure, disclosing the information is necessary to protect the public from harm, and must not disclose the respondent's name unless the respondent's name has already been made public or paragraph (a) applies"

Since the report states there is difficulty to discern benefit, why can the aforementioned individuals and/or boards determine what information about regulated health service providers can be made public?

Question #12:

Page 77 states:

"There needs to be a common entry route for all types of complaints or referrals so that all are prepared in the same way and sufficient information gathered before consideration by the registrar or Inquiry Committee"

Isn’t there already a common entry route and common applications for all types of complaints at the CPSBC?

Question #13:

Page 81 states:

"The HPRB recommended that the colleges should develop a shared policy on past regulatory history"

Was the CPSBC ever allowed time to develop a shared policy on past regulatory history? If not, why not?

Question #14:

Page 81 states:

“The Registrar should have the option to refer a matter for extraordinary action before and separate from consideration by the Inquiry Committee (which should maintain its power to refer for extraordinary action)”

Was the CPSBC ever allowed time to develop such a policy? If not, why not?

Question #15:

Page 81 states:

"When the Registrar or the Inquiry Committee conclude that a registrant should undertake remedial education or training they are limited to a 'request' that they should do so. If the registrant declines, the only option for the college is to institute disciplinary proceedings. As the HPRB points out, in practice this rarely happens. Colleges need the power, when appropriate, to mandate remediation. A further issue with remediation is the apparent lack of a requirement that a registrant shows insight before accepting remediation. Without insight remediation is morally and educationally vacuous"

Was the CPSBC ever allowed time to develop such a policy? If not, why not?

Question #16:

Page 81 states:

"Under section 53(1)(b) of the HPA the board of a college may authorize disclosure of information in the public interest. In the interests of speed and efficiency this power should be extended to the Registrar"

Was the CPSBC ever allowed time to develop such a policy? If not, why not?

Question #17:

Page 82 states:

"The role of fines should be reconsidered. They have no contribution to make to patient safety. They may be a disincentive to wrong actions but do not improve clinical practice in the incompetent professional. The use of fines should be reserved for financial misdemeanours or for failure to co-operate with the regulatory process or for deliberate delaying tactics during the disciplinary process"

Since the report states fines have no contributions to make to patient safety and should be reserved to failing to cooperate or deliberate delay tactics why does the HPOA state:

Section 518(1)(a): "An individual who [contravenes section 30 [unauthorized use of titles] or 34 [false or misleading information] commits an offence ... [and] is liable on conviction to a fine not exceeding $25,000 or to imprisonment for a term of not more than 6 months, or to both"

Section 518(1)(b): “An individual who [knowingly discloses information in contravention of a provision of this Act or the regulations] is liable on conviction to a fine not exceeding $200,000 or to imprisonment for a term of not more than 6 months, or to both”

Question #18:

Page 82 states:

"I recognise that there may be other improvements and simplifications of the HPA which a more thorough legal analysis could suggest, and that consultation on such changes will be needed to ensure clarity and avoid unintended consequences."

The Doctors of BC have openly admitted to members that the Ministry of Health and Steering Committee that:

"The Doctors of BC previously submitted responses and letters when the government's all-party committee was consulting on the Cayton report and proposed recommendations back in 2017, but Doctors of BC was not involved in the development of the HPOA. In our two submissions, Doctors of BC asked for the opportunity to provide further input into the details of the Ministry’s plans. However, we were not consulted on the legislation itself; the announcement of the 600-page legislation came as a surprise"

i) Why did the Ministry of Health and Steering Committee fail to respond to the Doctors of BC’s requests?

ii) Why was the Doctors of BC not consulted on the legislation itself?

iii) The report states such consultation was required to happen to "avoid unintended consequences". Does the Ministry of Health agree that given the backlash from healthcare providers and a 17,000 signature petition that this would be considered "unintended consequences"?

Question #19:

Page 82 states:

"Colleges need to increase the openness and transparency of their work. There is considerable variation in practice and the BCHR should encourage best practice to be adopted by all. Board meetings should be open to the public and time should be reserved for visitors to ask questions or to comment."

Was the CPSBC ever allowed time to develop such a policy? If not, why not?

Question #20:

Page 82 states:

"It is not possible for patients to give informed consent to care if they do not know that their health practitioner has had a complaint upheld against them. It should be recognised as a fundamental right of a patient to know about their healthcare provider's competence and conduct."

Was the Doctors of BC consulted regarding the publication of complaints? If yes, what was their response (please provide direct quotes from briefing notes)? If not, why were they not consulted?

Question #21:

Page 86 states:

"[The register] should therefore be responsible for establishing inquiry committees and disciplinary panels to adjudicate on complaints. This will create a proper independence from the licencing and investigatory functions of the colleges and remove conflicts of interest from the membership of the committees and panels"

The HPOA states:

Section 480(1)(a)(b)(i)(ii): "If the minister has reasonable grounds to believe that it is necessary and in the public interest to do so, the minister may appoint the superintendent or another person to inquire into any matter with respect to a regulatory college that could be the subject of an oversight investigation or a systemic review, the state of practice of a health profession or health occupation in all or part of British Columbia, or one or more health care facilities or types of healthcare facilities"

Section 480(2)(b): "For the purposes of an inquiry, a person appointed must comply with the terms of reference the minister establishes concerning the conduct of the inquiry."

Section 444(2): "The minister may appoint the director of discipline in accordance with the Public Service Act"

Section 446(1): "The director of discipline may retain consultants, experts, specialists and other persons who, in the opinion of the director, are necessary to assist the director or discipline panel members to exercise powers and perform duties under this Act"

Section 449(1): "The director of discipline must appoint persons as discipline panel members"

If a partisan minister can unilaterally appoint an individual for oversight investigations and the director of discipline (who would then appoint discipline panel members) does this not have the potential to be a partisan conflict of interest?

Question #22:

Page 87 states:

"A single register should make it easier for members of the public, patients, employers and registrants to identify individual health professionals. It will help to build trust in the public that their complaints are being considered independently and openly. It should mitigate concerns by registrants that decisions by inquiry committees are unduly influenced by college investigators."

The HPOA states:

Section 359(1)(a)(b)(c)(d): "A board must, by resolution, appoint one employee of the regulatory college as the registrar, professional standards advisors, members of the license committee, the investigation committee and, if applicable under a designation regulation, the permit committee, and if applicable under a designation regulation, a health occupation director."

Section 444(2): "The minister may appoint the director of discipline in accordance with the Public Service Act"

Section 446(1): "The director of discipline may retain consultants, experts, specialists and other persons who, in the opinion of the director, are necessary to assist the director or discipline panel members to exercise powers and perform duties under this Act"

Section 449(1): "The director of discipline must appoint persons as discipline panel members"

If the minister can unilaterally cherry-pick board nominees (as stated in this document that "The Superintendent will put forward a group of board members from this pool, for the Minister to appoint") who then appoints one employee of the regulatory college to serve on the investigation committee and can unilaterally appoint the director of discipline who may then retain "other persons" and appoint discipline panel members, how does one mitigate concerns by registrants that decisions by inquiry, investigative, and disciplinary committees/panels are unduly influenced by the government? What is the difference for registrants between decisions being influenced by college investigators and partisan investigators?

Question #23:

Page 92 states:

"I hope that the Ministry of Health, with the support of the colleges and, importantly, the health professions themselves, will seize the opportunity created by this review to work together to shape reform in the interests of the citizens of British Columbia."

There is very clear evidence that medical doctors and the Doctors of BC were not appropriately consulted in the creation of the HPOA and that there was no meaningful collaboration. Why did the Ministry of Health not participate in adequate collaboration? Moreover, why does the Ministry of Health refuse to admit the fact that they introduced the legislature without adequately consulting the Doctors of BC and its members?

Dr Greggain, by maintaining a meagre or non-voice, has the Doctors of BC been "played" by the government? Leadership is about doing the right thing, not the most expedient or politically correct thing. We are waiting for true leadership.

Respectfully submitted,

York N. Hsiang, M.B. MHSc., FRCSC.
Professor of Surgery
Department of Surgery