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Statutes of Newfoundland 1999


CHAPTER 26

AN ACT TO AMEND THE PHYSIOTHERAPY ACT

(Assented to December 14, 1999)

Analysis

1. S.5 R&S
Membership of college

2. S.7 R&S
Council of college

3. S.8(b) R&S
Regulations

4. Ss. Added
8.1 Fees
8.2 Regulations re: physiotherapy auxilia ries

5. S.11 Rep.
Limitation to practice

6. S.13 R&S
Definitions
S.13.1 Added
Committees
S.13.2 Added
Allegation
S.13.3 Added
Effect of filing allegation
S.13.4 Added
Complaints authorization committee
S.13.5 Added
Adjudication panel
S.13.6 Added
Hearing
S.13.7 Added
Powers of adjudication panel
S.13.8 Added
Filing of decisions
S.13.9 Added
De-registration and suspension
S.13.10 Added
Failure to comply
S.13.11 Added
Reinstatement and readmission
S.13.12 Added
Appeal to the council
S.13.13 Added
Qualification of the members of council
S.13.14 Added
Expenses of college
S.13.15 Added
Appeal to Trial Division

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


RSN1990 cP-13

1. Section 5 of the Physiotherapy Act is repealed and the following substituted:

Membership of college

5. (1) A person who is registered as a physiotherapist under this Act shall be a member of the college.

(2) A person who satisfies the conditions for registration as a physiotherapist set out in the regulations is entitled to be registered as a physiotherapist under this Act.

(3) The council shall register an applicant for registration as a physiotherapist who satisfies the conditions for registration as a physiotherapist set out in the regulations and may register an applicant for registration conditionally or temporarily, for a period not to exceed one year, subject to the terms for conditional or temporary registration set out in the regulations.

 

2. Section 7 of the Act is repealed and the following substituted:

Council of college

7. (1) The affairs of the college shall be administered by a council composed of not less than 7 members and not more than 10.

(2) The members of the council shall be elected by the college except that, where the council is composed of 7 members, 2 of that number shall be appointed by the minister to represent the public at large and where the council is composed of more than 7 members, the minister shall appoint 3 persons to represent the public at large.

 

3. Paragraph 8(b) of the Act is repealed and the following substituted:

(b) respecting the conditions for registration as a physiotherapist, including the conditions respecting conditional and temporary registration;

 

4. The Act is amended by adding immediately after section 8 the following:

Fees

8.1 The council may establish fees for registration and the renewal or reinstatement of registration under this Act.

Regulations re: physiotherapy auxiliaries

8.2 The council may, subject to the approval of the minister, make regulations with respect to physiotherapy auxiliaries

(a) defining a physiotherapy auxiliary and classifying physiotherapy auxiliaries;

(b) prescribing the qualifications necessary for each class of physiotherapy auxiliaries to be registered or certified under this Act;

(c) providing for the registration or certification of persons in each class of physiotherapy auxiliaries;

(d) prescribing the services that may be provided by each class of physiotherapy auxiliaries;

(e) establishing standards of conduct, competence and proficiency for each class of physiotherapy auxiliaries;

(f) defining professional misconduct for each class of physiotherapy auxiliaries;

(g) defining the activities that constitute a conflict of interest and prohibiting the engagement of a physiotherapy auxiliary in those activities;

(h) providing for the cancellation of the registration of a physiotherapy auxiliary or the suspension or revocation of his or her registration or certificate and regulations made under this paragraph shall include provisions respecting the holding of a hearing composed of a panel of 3 persons, one of whom shall be a physiotherapy auxiliary registered or certified under this section; and

(i) concerning other matters with respect to physiotherapy auxiliaries that the council considers necessary.

 

5. Section 11 of the Act is repealed.

 

6. Sections 13 and 13.1 of the Act are repealed and the following substituted:

Definitions

13. For the purpose of this section and sections 13.1 to 13.15

(a) "allegation" means a written document alleging that a respondent has engaged in conduct deserving of sanction;

(b) "chairperson of the council" includes a person designated by the chairperson to act in his or her place;

(c) "complainant" means a person making an allegation described in section 13.2; and

(d) "conduct deserving of sanction" includes

(i) professional misconduct,

(ii) professional incompetence;

(iii) conduct unbecoming a member of the college, and

(iv) acting in breach of this Act or the regulations; and

(e) "respondent" means a member or former member of the college.

Committees

13.1 (1) The council shall appoint the chairperson, vice-chairperson and members of the complaints authorization committee and the discipline committee.

(2) The complaints authorization committee shall consist of at least 3 persons, all of whom shall be members of the council, and at least one of whom shall be a member appointed to represent the public at large.

(3) The discipline committee shall consist of not less than 10 members of the college and not less than 3 persons who are not members of the college who shall be appointed by the minister.

(4) The council, the complaints authorization committee and the discipline committee may summon witnesses and require those witnesses to give evidence orally or in writing upon oath or affirmation, and produce the documents and things that may be considered necessary to the full investigation and hearing of allegations and complaints and shall have the powers, privileges and immunities that are conferred on commissioners appointed under the Public Inquiries Act.

Allegation

13.2 (1) An allegation shall be in writing and signed by the complainant or his or her solicitor, and filed with the chairperson of the council.

(2) The chairperson of the council may on his or her own motion make an allegation and file it, and the allegation shall have the same effect as an allegation referred to in subsection (1).

(3) Where the chairperson of the council has been informed that a respondent has been convicted of an offence under the provisions of the Criminal Code or a similar penal statute of another country or has been suspended by a governing body of the physiotherapy profession in another province or territory of Canada or another territory or country for reason of professional misconduct or professional incompetence, the information shall be dealt with by the chairperson of the council as an allegation.

Effect of filing allegation

13.3 (1) Where it appears to the chairperson of the council that the allegation may be resolved satisfactorily without investigation and in the opinion of the chairperson there is no other reason to investigate the allegation, and where the complainant and the respondent consent, the chairperson may refer the allegation to mediation in accordance with the regulations.

(2) The mediator shall provide written confirmation of the resolution of the allegation to the chairperson of the council.

(3) Where the allegation is not satisfactorily resolved by mediation, or in the opinion of the chairperson of the council it is for another reason appropriate to investigate the allegation, the chairperson shall conduct the investigation that in his or her opinion the allegation requires and the matter shall be submitted to the complaints authorization committee at its next meeting or at a special meeting that the complaints authorization committee may call to consider the allegation.

Complaints authorization committee

13.4 (1) After an allegation has been submitted to the complaints authorization committee, the committee may exercise one of more of the following powers:

(a) refer the allegation back to the chairperson of the council for further investigation or mediation;

(b) conduct further investigation itself;

(c) require the respondent to appear before it;

(d) recommend to the council that the respondentís practice be suspended or restricted; and

(e) recommend to the council that an investigation be conducted of the respondentís practice.

(2) Where the complaints authorization committee is of the opinion there are no reasonable grounds to believe the respondent has engaged in conduct deserving of sanction the committee shall dismiss the allegation.

(3) Where the complaints authorization committee is of the opinion that there are reasonable grounds to believe that a respondent has engaged in conduct deserving of sanction, the allegation shall be considered as constituting a complaint, and the committee may

(a) counsel or caution the respondent; or

(b) instruct the chairperson of the council to file the complaint against the respondent and refer it to the discipline committee; and

(c) make a recommendation referred to in subsection (1) at any time before a final determination has been made.

(4) Notwithstanding section 13.15, a decision of the complaints authorization committee made under subsection (1), (2) or (3) is final and is not subject to appeal.

Adjudication panel

13.5 (1) For the purpose of dealing with complaints referred to the discipline committee, the chairperson of the discipline committee shall appoint from the discipline committee an adjudication panel consisting of 3 persons, of whom 2 shall be members of the college and one shall be a representative of the public.

(2) The chairperson of the discipline committee shall appoint one of the members of the college on an adjudication panel to be the chairperson.

(3) An adjudication panel has the powers, duties, privileges and immunities of the discipline committee.

(4) Where, prior to the commencement of a hearing, a respondent pleads guilty to one or more of the charges set out in a complaint, the adjudication panel shall, without calling evidence or hearing witnesses, unless the panel believes, in the circumstances, it is appropriate to do so, hear submissions from the parties.

(5) Where a respondent pleads guilty and following submissions under subsection (4), the adjudication panel may

(a) refer the complaint back to the discipline committee where on reasonable grounds the adjudication panel believes it is in the public interest to do so; or

(b) reprimand the respondent; and

(c) order that the respondent be suspended for a fixed period that it may consider appropriate, until conditions which it may impose are fulfilled, or until further order of the adjudication panel or the council;

(d) order that the respondent be permitted to resign from the college upon those conditions that may be considered appropriate;

(e) impose a fine not to exceed $10,000;

(f) strike the respondentís name from the register;

(g) order that the respondent pay the expense or a part of the expense incurred by the college in the investigation or hearing of the complaint; and

(h) order that the respondent comply with one or more of the following:

(i) make restitution to the complainant or other person affected by the conduct of the respondent,

(ii) obtain medical treatment,

(iii) obtain psychological counselling,

(iv) obtain substance abuse counselling or treatment,

(v) engage in continuing education programs,

(vi) report on his or her compliance with an order made under this section and authorize others involved with his or her treatment or supervision to report on it,

(vii) notify employers of the respondent's disciplinary status,

(viii) give notice of an order made under this section to a person affected by the conduct giving rise to the order,

(ix) restrict his or her professional practice or continue his or her practice under specified conditions, or

(x) accept any other requirements that are just and reasonable in the circumstances.

Hearing

13.6 (1) Where a complaint has been referred under paragraph 13.4(3)(b) or 13.5(5)(a), an adjudication panel shall hear the complaint.

(2) The chairperson of the discipline committee may direct one or more adjudication panels to sit separately, whether or not concurrently, as he or she may consider necessary.

(3) The rules of evidence applicable in civil proceedings are applicable at a hearing except as varied by the regulations.

(4) The parties to a hearing are the college, the respondent and other persons designated by the adjudication panel and a party may be represented by counsel at a hearing.

(5) A hearing shall be conducted in public but an adjudication panel may exclude the public from a hearing, or from part of it, where it considers the desirability of protecting a party to the complaint against the consequences of possible disclosure of personal matters outweigh the desirability of holding the hearing in public.

Powers of adjudication panel

13.7 (1) Upon the hearing of a complaint, an adjudication panel shall decide whether or not a respondent is guilty of conduct deserving of sanction.

(2) Where an adjudication panel decides that a respondent is not guilty, it shall dismiss the complaint and may

(a) order that those costs that the panel considers appropriate be paid by the college to the respondent; and

(b) make another order, either upon terms or otherwise, that it may consider appropriate.

(3) Where an adjudication panel decides that a respondent is guilty, it shall take one or more of the following disciplinary actions:

(a) reprimand the respondent;

(b) order that the respondent be suspended for a fixed period that it may consider appropriate, until conditions which it may impose are fulfilled, or until further order of the adjudication panel or the council;

(c) order that the respondent be permitted to resign from the college upon those conditions that may be considered appropriate;

(d) impose a fine not to exceed $10,000;

(e) strike the respondentís name from the register;

(f) order that the respondent pay the expense or a part of the expense incurred by the college in the investigation or hearing of the complaint;

(g) make an order specified in paragraph 13.5(5)(h); and

(h) make another order, either upon terms or otherwise, that it may consider appropriate.

Filing of decisions

13.8 An adjudication panel shall file a decision or order made under subsection 13.5(5) or section 13.7 with the chairperson of the council.

De-registration and suspension

13.9 (1) Where a member of the college is struck off the register, his or her rights and privileges as a member cease.

(2) Where a member of the college is suspended, his or her rights and privileges as a member cease for the period of suspension.

(3) Where conditions or restrictions have been imposed upon a respondentís ability to carry on the practice of physiotherapy, his or her rights and privileges as a member of the college shall be limited to the extent specified by the conditions or restrictions.

Failure to comply

13.10 (1) On application by the college to the discipline committee, an adjudication panel may make an order suspending the rights and privileges of a respondent where it determines that the respondent has failed to comply with a decision or an order under sections 13 to 13.15.

(2) The parties to the application are the college, the respondent and another person added as a party by the adjudication panel.

(3) An order of an adjudication panel under this section may suspend the rights and privileges of the respondent for a fixed period that the adjudication panel may consider appropriate, or until conditions which it may impose are fulfilled, or until further order of the adjudication panel or the council.

Reinstatement and readmission

13.11 (1) Where a decision or order made by an adjudication panel has suspended the rights and privileges of a respondent or has imposed conditions on or restricted the manner in which a respondent may carry on the practice of physiotherapy, an adjudication panel may, on application by the respondent to the discipline committee, make an order discharging or varying the decision or order on the basis of fresh evidence or a material change in circumstances.

(2) Where a decision or order made by an adjudication panel has revoked a respondentís membership in the college as a member, an adjudication panel may, on application by the respondent to the discipline committee, make an order readmitting the respondent as a member on the basis of fresh evidence or a material change in circumstances.

(3) The parties to an application under this section are the applicant, the college and another person added as a party by the adjudication panel.

(4) An adjudication panel may make an order under this section that it considers appropriate, including

(a) that the respondent successfully pass examinations in specified subjects; and

(b) that the manner in which the respondent may carry on the practice of physiotherapy be restricted as specified by the adjudication panel.

Appeal to the council

13.12 (1) A party aggrieved by a decision or order of an adjudication panel may, within 30 days after receiving notice of the decision or order, appeal the decision or order to the council in accordance with the regulations by filing with the chairperson of the council a notice of appeal alleging an error in fact or law.

(2) An appeal to the council does not stay the decision or order being appealed unless the council orders otherwise.

(3) An appeal to the council shall be on the record of proceedings of the adjudication panel whose decision or order is being appealed.

(4) On the hearing of an appeal, the council may, as they consider just, make an order reversing, confirming, varying or referring for further consideration a decision or order of an adjudication panel.

Qualification of the members of council

13.13 (1) A member of the council is qualified to participate in or vote at proceedings before the council under sections 13 to 13.14 unless that member

(a) participated as a member of the complaints authorization committee or the adjudication panel in proceedings of that committee or panel relating to the matter that is the subject of the appeal;

(b) did not receive a copy of the record respecting the decision or order being appealed; or

(c) is otherwise disqualified.

(2) A member of the council hearing an appeal is not disqualified from continuing to hear the appeal solely because the member ceases to be a member after the commencement of the appeal.

Expenses of college

13.14 (1) Where a person who was ordered to pay the expenses of the college under paragraph 13.5(5)(g) or 13.7(3)(f) fails to pay in the time required, the council may suspend the membership of that person until the expenses are paid.

(2) Expenses ordered by the council under this section are a debt due the college and may be recovered by the council by a civil action.

Appeal to Trial Division

13.15 (1) A party aggrieved by a decision or order of the council under sections 13 to 13.14 may, within 14 days after receiving notice of the decision or order, appeal the decision or order to the Trial Division by filing with the Registrar of the Supreme Court a notice of appeal.

(2) An appeal under this section does not stay the decision or order being appealed unless the Trial Division orders otherwise.

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