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Statutes of Newfoundland and Labrador 2001


Statutes of Newfoundland and Labrador 2001 Chapter M-1.1

CHAPTER M-1.1

AN ACT RESPECTING THE PRACTICE OF MASSAGE THERAPY

(Assented to December 13, 2001)

Analysis

1. Short title

2. Definitions

3. Board

4. Meetings of board

5. Functions and duties

6. Fees and audit

7. Prohibition

8. Registration and licence

9. Transitional

10. Duties of registrar

11. Proof of registration

12. Complaints and disciplinary panel

13. Allegation

14. Effect of filing allegation

15. Complaints authorization committee

16. Adjudication

17. Hearing

18. Guilty plea by respondent

19. Powers of adjudication tribunal

20. Filing of decisions

21. De-registration and suspension

22. Failure to comply

23. Reinstatement and readmission

24. Costs and expenses of board

25. Appeal to Trial Division

26. Regulations

27. Fees and forms

28. Protection from liability

29. Offence

30. Commencement

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


Short title

1. This Act may be cited as the Massage Therapy Act.

Definitions

2. In this Act

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

(b) "association" means the Newfoundland and Labrador Massage Therapistsí Association Inc., incorporated under the Corporations Act;

(c) "board" means the Newfoundland and Labrador Massage Therapistsí Board established under section 3;

(d) "chairperson", unless the context indicates otherwise, means the chairperson of the board;

(e) "complainant" means a person making an allegation under section 13;

(f) "conduct deserving of sanction" includes

(i) professional misconduct,

(ii) professional incompetence,

(iii) conduct unbecoming a massage therapist, and

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

(g) "licence" means a licence to practise massage therapy issued under this Act;

(h) "massage therapist" means a person who is registered and holds a licence;

(i) "massage therapy" means the assessment of the soft tissue and joints of the body and the treatment and prevention of physical dysfunction and pain of the soft tissues and joints by manipulation to develop, maintain, rehabilitate or augment physical function or to relieve pain or to promote health;

(j) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(k) "register", "registered" and "registration" mean registration under section 8;

(l) "registrar" means the registrar of massage therapists elected under subsection 3(8); and

(m) "respondent" means a person who holds or who has held a licence under this Act and against whom an allegation is made.

Board

3. (1) There is established, as a corporation, a board to be known as the Newfoundland and Labrador Massage Therapistsí Board, consisting of 7 members appointed under subsections (2) and (3).

(2) The association shall appoint to the board 5 massage therapists from among the members of the association.

(3) The minister shall appoint to the board 2 persons who are not massage therapists to represent the public interest.

(4) The association and the minister may fill a vacancy on the board in accordance with subsections (2) and (3).

(5) A member of the board shall be appointed for a term of not more than 3 years and is eligible for reappointment but no member may serve for a continuous period exceeding 9 years.

(6) Notwithstanding subsection (5), each member shall continue to hold office until he or she is reappointed or a new member is appointed in his or her place.

(7) For the purpose of constituting the first board, a massage therapist is a person who is eligible to be registered under this Act.

(8) The board shall, as soon as is practicable after its appointment, meet and elect from among the members of the board one person to serve as chairperson and one person to serve as registrar.

(9) The chairperson shall, as soon as is practicable, notify the minister, in writing, of the results of an election under subsection (8).

Meetings of board

4. (1) The board shall hold at least one annual general meeting at a time and place that it determines or at a place that is prescribed by regulation and may hold other general meetings upon the request of the chairperson, the registrar or 2 members of the board.

(2) Four members of the board, including one member who is not a massage therapist, shall constitute a quorum.

(3) A decision of the majority of members in attendance at a meeting shall be the decision of the board and, in the event of a tie, the chairperson, or the person acting as chairperson, shall have a second deciding vote.

(4) Except where prohibited by regulation, a member of the board may, where all the members consent, participate in a meeting of the board by means of the telephone or other telecommunication device that permits all persons participating in the meeting to hear each other.

(5) A member of the board who participates in a meeting by the means described in subsection (4) is, for the purpose of this Act, present and in attendance at that meeting.

(6) Members of the board shall serve without remuneration but may be paid travelling and other expenses.

(7) Notwithstanding subsection (6), the board may decide, by a majority vote of the board, to remunerate the registrar.

Functions and duties

5. The board may

(a) examine all degrees, diplomas, licences and other credentials of an applicant for a licence to determine if the applicant should receive a licence and be registered to practise under this Act;

(b) prescribe continuing education, examinations or other requirements necessary in order to maintain registration and a licence under this Act;

(c) fix and collect fees;

(d) approve registration and issue licences to persons who meet the requirements of the Act and the regulations;

(e) establish procedures to deal with the disciplinary requirements under this Act; and

(f) carry out duties and tasks in accordance with this Act and the regulations.

Fees and audit

6. (1) The board shall ensure that the fees payable under this Act are sufficient to enable it to discharge its duties under this Act.

(2) All money received by the board shall be applied by it to the exercise of its functions and duties under this Act.

(3) The board shall appoint auditors who shall annually audit the affairs of the board.

Prohibition

7. (1) A person shall not be registered as a massage therapist and issued a licence under this Act unless he or she satisfies the requirements for registration and licensing established by this Act and the regulations.

(2) A massage therapist who is registered and licensed under and complies with this Act is entitled to

(a) use the title "massage therapist", "registered massage therapist", "licensed massage therapist" and the designation "R.M.T."; and

(b) engage in the practice of massage therapy for fee, commission, payment or profit.

(3) A person other than a massage therapist registered and licensed under this Act shall not use the title "massage therapist" or an abbreviation or variation of that title.

(4) A person shall not, after 60 days from the coming into force of this Act, hold himself or herself out as being a massage therapist entitled to practise or perform massage therapy in the province unless he or she is registered and holds a licence under this Act.

(5) Notwithstanding subsection (4), a person who carries out massage therapy

(a) as part of a course of or training in massage therapy that is approved by the board; or

(b) in connection with an examination that is arranged by the board

is not required to be registered and licensed under this Act.

Registration and licence

8. (1) For the purposes of registration and the issuance of a licence under this Act, the board shall recognize and approve examinations and schools of or pertaining to massage therapy and shall make provisions for the holding of examinations as it may consider necessary for those purposes, but the standards of the examinations and schools recognized and approved and of the examinations held shall not be lower than the standards prescribed by the Canadian Massage Therapy Alliance.

(2) The board shall register as a massage therapist and issue a licence to practise massage therapy to a person who

(a) pays the required fee;

(b) has a diploma, degree or certification and has passed the examinations recognized and approved by the board under subsection (1); and

(c) meets other requirements that may be prescribed by regulation.

(3) A person who is issued a licence under this Act shall, within 30 days after being granted a licence, become a member of the association.

(4) The licence of a person who does not comply with subsection (3) shall be considered to be revoked.

(5) The registrar shall annually renew the registration and licence of a person who meets the requirements of this Act and the regulations.

9. (1) Where, on the coming into force of this Act, a person has, in the opinion of the board, substantially completed the requirements for registration and licensing under section 8, that person may practise and perform massage therapy in the province for not more than one year immediately after the coming into force of this Act.

(2) A person shall not practise or perform massage therapy in the province after one year from the coming into force of this Act unless he or she is registered and licensed under section 8.

(3) Notwithstanding subsections (1) and (2) and subsections 8(2) and (4), where a person has

(a) practised massage therapy in the province for not fewer than 7 years immediately before the coming into force of this Act;

(b) while practising massage therapy in the province, been a member of the association; and

(c) completed courses of instruction and has practical experience that the board considers to be equivalent to the requirements of paragraph 8(2)(b),

the board may register that person as a massage therapist and issue a licence to practise massage therapy to him or her.

Duties of registrar

10. The registrar shall

(a) be secretary to the board;

(b) register and issue licences on the direction of the board to persons who meet the requirements for registration and licensing under this Act and the regulations;

(c) maintain a register of massage therapists containing the names of all persons who hold a licence under this Act;

(d) collect fees;

(e) control all matters relating to the finances of the board including receipt of money paid to the board or to a member on behalf of the board and shall make disbursements for the board;

(f) within 3 months after the end of the boardís fiscal year, file with the minister an audited statement showing the money collected and disbursements made during that preceding fiscal year; and

(g) perform other duties that the board may require.

Proof of registration

11. A certificate signed or purporting to be signed by the registrar stating that the name of a person was or was not entered in the register on a date or for a specified period shall be admissible in evidence without proof of the signature of the registrar and the contents of that certificate shall be, in the absence of evidence to the contrary, evidence of the facts stated on it.

Complaints and disciplinary panel

12. (1) The board shall appoint at least 3 members of the board, at least one of whom shall be a member of the board who was appointed to represent the public interest, to constitute a complaints authorization committee.

(2) The board shall appoint the chairperson and vice chairperson of the complaints authorization committee from the persons appointed under subsection (1).

(3) The board shall appoint at least 10 members of the association who are not members of the board, one of whom shall be appointed to serve as chairperson, and the minister shall appoint at least 3 persons who are not members of the association to represent the public interest, who shall together constitute a disciplinary panel.

(4) Of the persons first appointed to the disciplinary panel, one half shall be appointed for a term of 2 years and the remainder for a term of 3 years and all subsequent appointments of members of the disciplinary panel shall be for a term of 3 years.

(5) Notwithstanding the expiry of his or her term, a member of the disciplinary panel continues to be a member until he or she is re-appointed or his or her replacement is appointed.

(6) Members appointed to the disciplinary panel may be reappointed.

(7) The complaints authorization committee and an adjudication tribunal appointed under section 16 and a person appointed by either of them for the purpose 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 either of them considers 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. (1) An allegation shall be in writing and signed by the complainant or his or her solicitor, and filed with the registrar of the board.

(2) The registrar 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 registrar has been informed that a massage therapist has been convicted of an offence under the provisions of the Criminal Code (Canada) or a similar penal statute of another country or has been suspended by a governing body of massage therapists in another province or territory of Canada or in another country for reason of professional misconduct, conduct unbecoming to a massage therapist or professional incompetence, the information shall be dealt with by the registrar as an allegation.

Effect of filing allegation

14. (1) Where it appears to the registrar that an allegation may be resolved satisfactorily, and where the complainant and the respondent consent, the registrar may attempt to resolve the matter.

(2) Where an allegation is not satisfactorily resolved by the registrar under subsection (1), the registrar shall refer the allegation and all other allegations to the complaints authorization committee.

(3) The registrar shall inform a complainant and a massage therapist against whom the allegation is made of the referral of the allegation to the complaints authorization committee.

Complaints authorization committee

15. (1) After an allegation has been referred to the complaints authorization committee, the committee may exercise one or more of the following powers:

(a) refer the allegation back to the registrar for an investigation or alternative dispute resolution in accordance with the regulations;

(b) conduct an investigation itself or appoint a person to conduct an investigation on its behalf; and

(c) require the respondent to appear before it.

(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 and give notice in writing of the dismissal to the complainant.

(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 registrar to file the complaint against the respondent and refer it to the disciplinary panel; and

(c) recommend to the board that

(i) the respondentís practice be suspended or restricted, or

(ii) the registrar conduct an investigation of the respondentís practice, and where the board approves an investigation the registrar shall conduct it,

at any time before a final determination by the adjudication tribunal.

(4) A person conducting an investigation under paragraph (1)(b) or subparagraph (3)(c)(ii) may, for that investigation, require a massage therapist to

(a) undergo practical and other examinations he or she considers necessary and as arranged by the registrar or the board; and

(b) permit the registrar or a member of the board or another person to inspect the records of the massage therapist and other documents relating to the subject matter of the investigation.

(5) A massage therapist or another person to whom a request is addressed under subsection (4) shall comply with the request.

(6) An action for damages does not lie against a massage therapist or another person to whom a request is made solely because he or she provides information requested of him or her under subsection (4).

(7) Where the registrar, a member of the board or another person requests that a massage therapist provide information under subsection (4), that information shall be provided, as requested, within 7 days of receipt of the request by the massage therapist or a different period as specified in the request.

(8) Where the complaints authorization committee recommends to the board that a respondentís practice of massage therapy be suspended, restricted or investigated, the board may

(a) decide not to act on the recommendation; or

(b) suspend, restrict or investigate the respondentís practice of massage therapy.

(9) A complainant whose allegation is dismissed by the complaints authorization committee under subsection (2) may appeal the dismissal to the Trial Division within 30 days after receiving notice of the dismissal.

Adjudication

16. (1) For the purpose of dealing with a complaint referred to the disciplinary panel, the chairperson of the disciplinary panel shall appoint from the disciplinary panel an adjudication tribunal consisting of 3 persons, of whom 2 shall be massage therapists and one shall represent the public interest.

(2) The chairperson of the disciplinary panel shall appoint one of the massage therapists on an adjudication tribunal to be the chairperson of that tribunal.

Hearing

17. (1) Where a complaint has been referred under paragraph 15(3)(b), an adjudication tribunal shall hear the complaint.

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

(3) The parties to a hearing are the board and the respondent and a party may be represented by his or her counsel at a hearing.

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

Guilty plea by respondent

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

(2) Where a respondent pleads guilty, and following submissions under subsection (1), the adjudication tribunal may

(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 tribunal;

(c) allow or direct the respondent to surrender his or her licence to the board upon those conditions that may be considered appropriate and strike the respondentís name from the register;

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

(e) order that the respondent pay the costs and expenses or a part of the costs and expenses incurred by the board in the investigation and hearing of the complaint; and

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

(viii) impose other requirements that are just and reasonable in the circumstances.

Powers of adjudication tribunal

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

(2) Where an adjudication tribunal decides that a respondent is not guilty, it shall dismiss the complaint and may, where it believes that the submission of the complaint to the disciplinary panel for a hearing was unreasonable,

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

(b) make another order that it considers appropriate.

(3) Where an adjudication tribunal decides that a respondent is guilty, it may

(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 tribunal;

(c) allow or direct the respondent to surrender his or her licence to the board upon those conditions that may be considered appropriate and strike the respondentís name from the register;

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

(e) order that the respondent pay the costs and expenses or a part of the costs and expenses incurred by the board in the investigation or hearing of the complaint; and

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

(viii) impose other requirements that are just and reasonable in the circumstances.

Filing of decisions

20. (1) An adjudication tribunal shall file a decision or order made under subsection 18(2) or section 19 with the registrar and provide a copy to the complainant and the respondent and the respondent's employer.

(2) The registrar shall within 7 days of the filing of a decision or order of an adjudication tribunal publish a summary of the decision or order in a newspaper of general circulation in or nearest to the community in which the respondent practises.

(3) The summary of the decision published under subsection (4) shall include

(a) the name of the respondent and the address where he or she practises;

(b) the date, location and a brief description of the conduct of the respondent that was found to be deserving of sanction;

(c) the name of the complainant, unless the complainant has requested that his or her name be withheld; and

(d) the full text of a reprimand and the details of an order made under subsection 18(2) or 19(3).

(4) Where a decision published under this section is confirmed, varied or set aside, the registrar shall within 7 days of the filing of the subsequent decision or order publish a summary of the decision or order and subsections (2) and (3) apply, with the necessary changes.

De-registration and suspension

21. (1) Where a massage therapist is struck off the register, his or her rights and privileges as a massage therapist cease.

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

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

Failure to comply

22. (1) On application by the board to the disciplinary panel, an adjudication tribunal may make an order suspending the rights and privileges of a respondent where it determines that he or she has failed to comply with a decision or an order made under section 18 or 19.

(2) The parties to the application are the board and the respondent who is the subject of the application.

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

Reinstatement and readmission

23. (1) Where as a result of a decision of the adjudication tribunal the respondent has

(a) been struck from the register;

(b) had his or her rights and privileges suspended; or

(c) had imposed upon him or her conditions or restrictions on the manner in which he or she may carry on his or her practice of massage therapy,

and where the respondent alleges that new evidence has become available or a material change in circumstances has occurred since the making of the decision or order, the respondent may apply to the complaints authorization committee for a supplementary hearing to discharge or vary the decision or order based on the new evidence or material change in circumstances.

(2) An application under subsection (1) shall be made not more than 90 days after the new evidence becomes available or the material change in circumstances has occurred.

(3) Where an application is made to the complaints authorization committee under subsection (1), and the committee is of the opinion that new evidence has become available or that a material change in circumstances has occurred, the matter shall be referred to an adjudication tribunal as if it were a matter referred under paragraph 15(3)(b) and sections 17 to 22 apply, with the necessary changes, to the referred matter.

(4) The parties to a supplementary hearing under this section are the respondent and the board.

(5) For the purpose of this section, in addition to an order that an adjudication tribunal may make under section 19, a tribunal may

(a) vary the original decision or order made under section 19; or

(b) discharge the original decision or order, with or without conditions.

Costs and expenses of board

24. (1) Where a person who was ordered to pay the costs and expenses of the board under paragraph 18(2)(e) or 19(3)(e) fails to pay in the time required, the board may suspend the licence of that person until those costs and expenses are paid.

(2) Costs and expenses ordered by the adjudication tribunal under this section are a debt due to the board and may be recovered by the board in a civil action.

Appeal to Trial Division

25. (1) A party aggrieved by a decision or order of an adjudication tribunal under this Act may, within 30 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.

Regulations

26. The board may, with the approval of the minister, make regulations

(a) providing for the holding and procedures of its meetings and for the election of an acting chairperson at its meetings;

(b) prescribing the rates and manner of payment for travelling and other expenses of board members;

(c) prescribing conditions and requirements for the registration and licensing of persons who practise massage therapy including a requirement to maintain malpractice insurance and conditions and requirements that exceed the requirements of section 8;

(d) respecting continuing education courses and other programs for the purpose of maintaining and improving professional standards of members;

(e) respecting alternative dispute resolution and the procedure for that resolution;

(f) approving colleges or universities that offer courses and programs in massage therapy including the approval of colleges, universities, courses and programs not referred to in section 8;

(g) respecting the appointment of committees and prescribing their duties and responsibilities;

(h) prescribing, scheduling or adopting examinations and determining the circumstances when examinations are required;

(i) respecting the conduct of meetings by telephone or other means of telecommunication;

(j) respecting the rules of evidence applicable at a hearing;

(k) respecting conflicts of interest; and

(l) generally to give effect to the purpose of this Act.

Fees and forms

27. The board may set fees and establish forms for the purposes and administration of this Act.

Protection from liability

28. An action for damages does not lie against the registrar, a member, officer or employee of the board, a person designated by the board, a member of a panel, tribunal or committee authorized under this Act, another agent of the board or the board as a corporation for an act or failure to act or a proceeding initiated or carried out in good faith under this Act, or for carrying out duties or obligations as the registrar, a member, officer, employee, designate, agent or tribunal, panel or committee member authorized under this Act or for a decision or order made or enforced in good faith under this Act.

Offence

29. (1) A person who contravenes this Act or the regulations commits an offence and is liable on summary conviction to a fine not exceeding $1,000 or to imprisonment for a term not exceeding one month in default of payment or to both a fine and imprisonment.

(2) Each day that an offence is committed under this Act shall be considered to be a separate offence.

Commencement

30. This Act shall come into force on a date to be proclaimed by the Lieutenant-Governor in Council.

 

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