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Statutes of Newfoundland and Labrador 2004


CHAPTER O-7.01

AN ACT TO REVISE THE LAW ABOUT THE PRACTICE OF OPTOMETRY

(Assented to June 8, 2004)

Analysis

1. Short title

2. Definitions

3. Application

PART I
ASSOCIATION

4. Association

5. Membership

PART II
LICENSING BOARD

6. Licensing board

7. Appointed directors

8. Registrar

9. Meetings

10. By-laws

11. Annual report

12. Application for licence

13. Licence

14. Annual renewal

PART III
PROFESSIONAL OPTOMETRIC CORPORATION

15. Definitions

16. Professional corporation

17. Corporate register

18. Annual licence

19. Revocation of licence

20. Effect of incorporation

21. Liability of optometrist

22. Misconduct of a professional optometric corporation

PART IV
DISCIPLINE

23. Definitions

24. Committees

25. Allegation

26. Effect of filing allegation

27. Complaints authorization committee

28. Adjudication tribunal

29. Hearing

30. Guilty plea by respondent

31. Powers of adjudication tribunal

32. Filing and publication of decisions

33. De-registration and suspension

34. Failure to comply

35. Reinstatement and readmission

36. Costs of the board

37. Collection of fine

38. Appeal to Trial Division

PART V
GENERAL

39. Referral

40. Pharmaceuticals

41. Use of trade name

42. Use of certain titles

43. Inspection

44. Action prohibited

45. Offence

46. Proof

47. Regulations

48. Fees and forms

49. Transition

50. SNL1994 cP-12.1 Amdt.

51. RSNL1990 cO-7 Rep.

52. 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 Optometry Act, 2004.

Definitions

2. In this Act

(a) "association" means the Newfoundland and Labrador Association of Optometrists Inc.;

(b) "board" means the Newfoundland and Labrador Optometric Board;

(c) "by-laws" means the by-laws made by the board under section 10 and the Corporations Act;

(d) "director" means a person elected or appointed to the board;

(e) "licence" means a licence to practise optometry issued and in force under this Act;

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

(g) "ophthalmic appliances" means lenses, spectacles, eyeglasses, artificial eyes, contact lenses, or accessories for the relief or correction of a visual or muscular error or defect of the eye;

(h) "ophthalmic dispensing" means

(i) supplying, preparing and dispensing ophthalmic appliances,

(ii) interpreting prescriptions of optometrists or medical practitioners, and

(iii) fitting, adjusting and adapting of ophthalmic appliances to the human face and eyes in accordance with the prescriptions of optometrists or medical practitioners;

(i) "optometrist" means a person who through specialized education, training and experience is skilled in the principles and practice of optometry;

(j) "optometry" means the services usually performed by an optometrist, and includes

(i) measuring or attempting to measure the refractive or muscular condition of the eye,

(ii) prescribing and ophthalmic dispensing of ophthalmic appliances,

(iii) prescribing orthoptic treatment for the relief or correction of a visual or muscular error or defect of the eye,

(iv) removing superficial foreign bodies from the human eye and surrounding tissue in accordance with the regulations, and

(v) prescribing and administering pharmaceutical agents in accordance with the regulations where the optometrist is certified by the board as qualified;

(k) "practitioner" means an optometrist licensed to practise under this Act;

(l) "professional optometric corporation" means a corporation that is permitted under Part III to provide the services of an optometrist;

(m) "register" means the register referred to in section 8; and

(n) "registrar" means the registrar elected under section 6.

Application

3. (1) This Act does not apply to or affect

(a) a medical practitioner registered under the laws of the province;

(b) a registered nurse or a nurse practitioner who checks the visual acuity of a person or a person authorized by another Act or regulation to perform these checks;

(c) a person who provides orthoptic services under the direction of a medical practitioner; or

(d) a person engaged solely in ophthalmic dispensing.

(2) This Act does not prevent the sale of protective glasses for industrial purposes, coloured glasses that are not ophthalmic appliances or goggles or magnifying glasses not sold or designed for the relief, prevention or correction of visual or ocular anomalies of the eyes.

PART I
ASSOCIATION

Association

4. (1) The Newfoundland Association of Optometrists is continued under the name Newfoundland and Labrador Association of Optometrists Inc. as a corporation without share capital for the purposes of Part XXI of the Corporations Act.

(2) The objects of the association shall include, notwithstanding anything in the by-laws of the association,

(a) advancing and protecting the profession of optometry in the province; and

(b) improving the practice of optometry and optometric education in the province.

(3) Notwithstanding its incorporation under this Act, the association shall be governed by the Corporations Act for all purposes, including a change of the name of the association.

Membership

5. A person who holds a licence and pays the membership fee set by the association is a member of the association notwithstanding anything in the by-laws of the association.

PART II
LICENSING BOARD

Licensing board

6. (1) The Newfoundland Optometric Board is continued under the name Newfoundland and Labrador Optometric Board as a corporation without share capital for the purposes of Part XXI of the Corporations Act.

(2) The board consists of:

(a) 4 directors elected from and by practitioners in accordance with the by-laws; and

(b) 2 directors appointed under section 7 who are not practitioners.

(3) A member of the board of directors of the association is ineligible to be a director of the board.

(4) The board shall elect a chairperson from the directors and a registrar from the elected directors.

(5) The chairperson shall chair all meetings of the board and the annual general meeting required under section 9.

(6) A director may be elected for a term set by the by-laws which shall not exceed 3 years and is eligible to be re-elected, but shall not hold the office of director for more than 9 consecutive years.

(7) An elected director may resign the office of director by written notice to the board.

(8) Where an elected director resigns, dies or becomes incapable of performing the duties of a director, the remaining directors shall appoint a replacement to serve until the next annual general meeting.

Appointed directors

7. (1) The minister shall appoint as directors of the board 2 persons who are not optometrists who are suitable to represent the public interest.

(2) A person appointed under subsection (1) holds office for a term of 3 years and is eligible to be re-appointed.

(3) Where a person appointed under subsection (1) holds office for a period of 9 consecutive years the person is not eligible for appointment as a member of the board until the expiration of 12 months from the end of the year in which he or she was last a director.

(4) Where the term of an appointed director expires, he or she continues to be a director until re-appointed or replaced.

(5) The board shall pay the expenses of an appointed director in accordance with guidelines established by the Lieutenant-Governor in Council.

(6) A person appointed under subsection (1) may resign the office of director by written notice to the minister.

Registrar

8. (1) The registrar is the secretary of the board and shall

(a) keep a record of the proceedings of the board;

(b) maintain a register containing the names of those persons qualified and licensed to practise optometry in the province and other information that the board may require; and

(c) subject to the payment of applicable fees under this Act, where the board has approved the licensing of a person, enter the name of that person in the register and, in accordance with section 13, issue to that person a licence to practise optometry.

(2) The registrar shall make the registers of the board available for inspection by the public on reasonable notice and at reasonable times.

(3) Where registration is in issue, the production of a copy of the register, certified by the registrar, is sufficient evidence of persons who are registered in the absence of the production of the original.

(4) The absence of the name of a person from the register or a copy of it certified according to subsection (3) is, in the absence of evidence to the contrary, proof that that person is not registered.

Meetings

9. (1) A quorum of the board is 4 directors, one of whom is an appointed director.

(2) Except where prohibited in the by-laws, a director may, where all the directors 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 communicate with each other.

(3) Where a quorum under subsection (1) exists, a majority of that number is sufficient to make a decision, and in the event of a tie the chairperson of the meeting shall cast the deciding vote.

(4) The board shall hold, in accordance with the by-laws, an annual general meeting of practitioners at which

(a) the election for directors shall be held; and

(b) an auditor shall be appointed to audit the accounts of the board and report on the financial statements prepared by the board.

(5) The board may in its by-laws provide for the annual general meeting of practitioners to be held or for practitioners to participate in the meeting by mail, telecommunications or other means.

By-laws

10. (1) The board may make by-laws

(a) respecting the holding and procedure of its meetings;

(b) providing for the election of directors under subsection 9(4) and setting the terms of office;

(c) the payment of travel and other expenses of elected directors;

(d) limiting the participation of directors in a meeting of the board by telephone or other telecommunications device;

(e) providing for voting at a meeting of practitioners by mail or electronic means;

(f) respecting the application and variation of the rules of evidence at hearings held under Part IV;

(g) setting standards for proof of active practice;

(h) establishing a code of ethics which may include a definition of "professional misconduct" and "conduct unbecoming an optometrist" for the purposes of Part IV; and

(i) generally, to assist in the administration of this Act and the regulations.

(2) The board shall have its by-laws available for inspection by the public on reasonable notice and at reasonable hours.

Annual report

11. (1) The board shall prepare and submit to the minister before July 1 in a year

(a) a report on the activities of the board; and

(b) the board's audited financial statements.

(2) Where the board fails to comply with subsection (1), the board is guilty of an offence and on summary conviction may be fined $1,000.

Application for licence

12. (1) A person may apply for a licence to practise optometry where he or she

(a) has the academic qualifications set in the regulations and has passed the examination that may be required by the regulations;

(b) has a working knowledge of the English language sufficient to enable the person to practise optometry in the province; and

(c) produces evidence of satisfactory character that is acceptable to the board.

(2) An application shall be directed to the registrar who shall determine whether the applicant meets the requirements in subsection (1) or whether further examination is required.

Licence

13. (1) The board shall issue to an applicant who meets the qualifications in section 12, a licence to practise optometry where he or she

(a) pays the licence fee set by the board;

(b) pays outstanding fines, penalties or fees, which are owed to the board;

(c) establishes that he or she is not suspended or restricted with respect to the practise of optometry by a licensing board or equivalent body governing the practise of optometry in a jurisdiction outside the province;

(d) provides proof that he or she has obtained professional liability insurance coverage in a form and amount satisfactory to the board; and

(e) satisfies other requirements that may be set by the board in the regulations.

(2) A person who is issued a licence under this section shall within 30 days of the date the licence is issued, become a member of the association and the failure of that person to do so makes the licence void upon the expiry of the 30 days.

(3) A licence issued under this section shall, unless cancelled or suspended by the board, expire at midnight on December 31 of the calendar year for which it is issued.

Annual renewal

14. (1) A person who meets the conditions in paragraphs 13(1)(a) to (e) may renew a licence issued under section 13 of this Act by applying to the registrar and paying the fees set by the board.

(2) The board may, as a condition of licence renewal, require proof of active practice in accordance with standards that may be set in the by-laws.

(3) The registrar shall issue a renewal licence to a person who has applied and paid the fees and who is otherwise in compliance with the Act.

PART III
PROFESSIONAL OPTOMETRIC CORPORATION

Definitions

15. In this Part

(a) "non-voting share" means an issued share of a professional optometric corporation that is not a voting share; and

(b) "voting share" means an issued share of a professional optometric corporation with the right to vote at a meeting of shareholders attached to it.

Professional corporation

16. (1) One or more practitioners may incorporate a corporation to provide the services of an optometrist.

(2) The corporation shall be incorporated under the Corporations Act.

(3) The name of the corporation shall meet the requirements of subsection 17(1) of the Corporations Act.

(4) A corporation shall not provide the services of an optometrist unless it is registered and licensed under this Act.

Corporate register

17. (1) The registrar shall maintain a register of professional optometric corporations in which shall be entered the names of those corporations permitted under this Part to provide the services of an optometrist.

(2) The board shall direct the registrar to register a professional optometric corporation that establishes that

(a) all the voting shares of the corporation are beneficially owned by and registered in the name of one or more practitioners and there is no restriction on the right of each practitioner to exercise his or her vote as he or she wishes to;

(b) a natural person owns the non-voting shares;

(c) all the directors of the corporation are practitioners, and there is no agreement restricting the powers of the directors to manage the business and affairs of the corporation in relation to the practice of optometry;

(d) all of the persons who will be practising optometry as employees of or on behalf of the corporation are practitioners;

(e) the articles of the corporation restrict it to providing the services of an optometrist and related matters;

(f) the corporation is in good standing under the Corporations Act; and

(g) the corporation has complied with other requirements for registration in the regulations.

(3) The corporate register shall be available for inspection under section 8.

(4) The board may enter into a reciprocal agreement with an optometric board, association or other body having responsibility for the registration and licensing of professional optometric corporations in another jurisdiction for the registration of corporations from that jurisdiction in the register of the board.

(5) Notwithstanding subsection (2), the voting shares of a professional optometric corporation may be held for no longer than 180 days, or the registrar permits an extension, by

(a) an executor or administrator of the estate of a deceased practitioner to discharge the duties of that position; or

(b) a trustee in bankruptcy to discharge his or her duties as trustee in respect of the corporation or a practitioner.

Annual licence

18. (1) A professional optometric corporation may apply for a licence to provide the services of an optometrist in the province and the board shall issue the corporate licence provided that

(a) the professional optometric corporation is registered under this Act;

(b) the application is accompanied by a licence fee which may be established by the board; and

(c) the professional optometric corporation continues to meet the requirements for registration set out in section 17 and other requirements for being licensed which may be set out in this Act and the regulations.

(2) The holder of a licence issued under this section is entitled to recover from a person, in a court of the province having jurisdiction to order payment from that person, reasonable charges for the provision of professional services by that licence holder.

(3) A licence issued under this section expires on December 31 of the calendar year for which it is issued.

Revocation of licence

19. A licence issued under section 18 may be revoked by the board where

(a) the professional optometric corporation ceases to meet a requirement for registration or licensing under this Act;

(b) the professional optometric corporation contravenes this Act or the regulations; or

(c) a practitioner is disciplined under Part IV in respect of professional services performed by him or her as an employee of or on behalf of the professional optometric corporation.

Effect of incorporation

20. (1) A practitioner who provides professional services to or through a professional optometric corporation is, notwithstanding his or her relationship to the professional optometric corporation or the relationship between the patient and the professional optometric corporation, subject to

(a) the application of this Act as if he or she were providing services as an individual practitioner; and

(b) the same duties and responsibilities in connection with his or her dealings with patients of the professional optometric corporation as if he or she were providing services directly to those patients.

(2) The relationship between a professional optometric corporation and a patient receiving services from or through that corporation is subject to the laws relating to the confidential and ethical relationship between a practitioner and his or her patient.

(3) All rights and obligations pertaining to communications made to, or information received by, practitioners apply to the shareholders, directors, officers and employees of a professional optometric corporation.

Liability of optometrist

21. (1) Notwithstanding a provision to the contrary in the Corporations Act, a practitioner who provides services or practises optometry through or on behalf of a professional optometric corporation is liable to a person in relation to those services and the practice of optometry to the same extent and in the same manner as if the practitioner provided those services as an individual and that liability is not affected because of the practitionerís relationship to the professional optometric corporation as a shareholder, director, officer, employee or in another capacity.

(2) A practitioner is jointly and individually liable with a professional optometric corporation for all claims made against the corporation in connection with the provision of services or the practice of optometry by the practitioner.

(3) In this section, "practitioner" includes a person formerly licensed under this Act to practice optometry.

Misconduct of a professional optometric corporation

22. (1) A practitioner is liable to be disciplined under Part IV for the actions or conduct of a professional optometric corporation while the practitioner was a shareholder, director, officer or employee of the professional optometric corporation.

(2) A practitioner shall not be liable to discipline under subsection (1) where the practitioner proves that he or she did not know and could not reasonably have known about the relevant actions or conduct of the professional optometric corporation.

(3) Any powers of inspection, investigation or inquiry that may be exercised in respect of a practitioner under Part IV may be exercised in respect of a professional optometric corporation or its records in connection with an inquiry under subsection (1).

(4) A professional optometric corporation is jointly and individually liable with the practitioner for all fines and costs the practitioner is ordered to pay in connection with an inquiry under subsection (1).

(5) In this section, "practitioner" includes a person formerly licensed under this Act to practice optometry.

PART IV
DISCIPLINE

Definitions

23. In this Part,

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

(b) "complainant" means a person making an allegation described in section 25;

(c) "conduct deserving of sanction" includes

(i) professional misconduct,

(ii) professional incompetence,

(iii) conduct unbecoming a optometrist, and

(iv) acting in breach of this Act, the regulations, or the code of ethics made under section 10;

(d) "disciplinary panel" means the panel of persons appointed under section 24 from which the members of an adjudication tribunal are chosen; and

(e) "respondent" means a practitioner, a former practitioner or a professional optometric corporation, against whom an allegation is made.

Committees

24. (1) The board shall appoint the chairperson, vice-chairperson and members of the complaints authorization committee, and the practitioners who will serve on the disciplinary panel, one of whom shall be appointed the chairperson.

(2) The complaints authorization committee shall consist of at least 3 persons, all of whom shall be directors, and at least one of whom shall be a director who was appointed by the minister.

(3) The registrar is not eligible to be a member of the complaints authorization committee.

(4) The disciplinary panel shall consist of not less than 6 practitioners who are not directors and not less than 3 persons who are not practitioners who shall be appointed by the minister to represent the public interest.

(5) Of the members 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 to the disciplinary panel shall be for a term of 3 years.

(6) 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.

(7) Persons appointed to the disciplinary panel may be reappointed.

(8) The complaints authorization committee and an adjudication tribunal appointed under section 28 and a person appointed by either of them 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 an allegation or complaint and shall have the powers, privileges and immunities that are conferred on a commissioner appointed under the Public Inquiries Act.

Allegation

25. (1) An allegation shall be in writing and signed by the complainant or his or her solicitor, and filed with the registrar.

(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 practitioner 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 optometrists in another province or territory of Canada or another territory or country for reason of professional misconduct, conduct unbecoming a optometrist or professional incompetence, the information shall be dealt with by the registrar as an allegation.

Effect of filing allegation

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

(2) Where the 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 respondent of the referral of the allegation to the complaints authorization committee.

Complaints authorization committee

27. (1) After an allegation has been submitted 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

(a) require a respondent to

(i) undergo an examination or assessment he or she considers necessary and as arranged by the registrar or the board, and

(ii) permit the registrar or a member of the board or a person appointed by the board to inspect the records of the respondent and other documents relating to the subject matter of the investigation; and

(b) require another person to permit the registrar or a member of the board or a person appointed by the board to inspect records and other documents relating to the subject matter of the investigation held by that person,

and the respondent or other person shall comply.

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

(6) An action for damages does not lie against a practitioner 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 complaints authorization committee recommends to the board that a respondentís practice 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.

(8) A complainant whose allegation is dismissed by the complaints authorization committee under subsection (2) may within 30 days after receiving notice of the dismissal, appeal the dismissal to the Trial Division by filing a notice of appeal with the Registrar of the Supreme Court.

Adjudication tribunal

28. (1) For the purpose of dealing with complaints referred to the disciplinary panel, the chairperson of the disciplinary panel shall appoint from it an adjudication tribunal consisting of 3 persons, of whom 2 shall be practitioners and one shall be a member of the panel appointed to represent the public interest.

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

Hearing

29. (1) Where a complaint has been referred under paragraph 27(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 in the by-laws.

(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 party to the complaint or another person against the consequences of possible disclosure of personal matters outweigh the desirability of holding the hearing in public.

Guilty plea by respondent

30. (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 considers 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 or a part of the costs incurred by the board in the investigation and hearing of the complaint;

(f) order that the registrar publish a summary of the decision including the information set out in subsection 32(4) and other information that the tribunal may specify; and

(g) 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

31. (1) Upon hearing 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 tribunal for a hearing was unreasonable,

(a) order that those costs that the tribunal 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 considers 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 or a part of the costs incurred by the board in the investigation or hearing of the complaint;

(f) order that the registrar publish a summary of the decision including the information set out in subsection 32(4) and other information that the tribunal may specify; and

(g) 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 and publication of decisions

32. (1) An adjudication tribunal shall file a decision or order made under subsection 30(2) or 31(3) with the registrar and provide a copy to the complainant and the respondent and the respondent's employer.

(2) The registrar shall maintain a copy of a decision or order filed under subsection (1) for a minimum of 5 years after the day the decision is filed and shall upon receiving a request to view the disciplinary records in relation to a practitioner permit a person to view a summary of a decision where that practitioner was the respondent, prepared in accordance with subsection (4).

(3) The registrar shall publish a summary of a decision or order of an adjudication tribunal in a newspaper of general circulation in or nearest to the community in which the respondent practises within 14 days of the filing of the decision or order, where the decision or order

(a) suspends the respondent;

(b) allows or directs the respondent to surrender his or her licence;

(c) restricts the respondentís practice;

(d) specifies conditions for the continuing practice of the respondent; or

(e) requires that a summary of the decision or order be published.

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

(d) the contents of the order in relation to the actions referenced in paragraphs (3)(a) to (d); and

(e) other information specified for publication in the decision or order.

(5) Where a decision published under this section is varied or set aside, the registrar shall within 14 days of the filing of the subsequent decision or order publish a summary of the decision or order and subsections (3) and (4) apply, with the necessary changes.

De-registration and suspension

33. (1) Where a practitioner is struck off the register, his or her rights and privileges as a licensed optometrist cease.

(2) Where a practitioner is suspended, his or her rights and privileges as a licensed optometrist 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, his or her rights and privileges as a licensed optometrist shall be limited to the extent specified by the conditions or restrictions.

Failure to comply

34. (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 the respondent has failed to comply with a decision or an order under this Part.

(2) The parties to the application are the board and the respondent.

(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

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

(a) has been struck from the register;

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

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

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, as alleged by a respondent, the matter shall be referred to an adjudication tribunal as if it were a matter referred under paragraph 27(3)(b) and sections 29 to 33 apply, with the necessary changes, to the referred matter.

(4) The complaints authorization committee may refer a matter under subsection (3) to the adjudication tribunal that made the original decision or order, or may constitute a new adjudication tribunal.

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

(6) For the purpose of this section, in addition to an order that an adjudication tribunal may make under section 31, a tribunal may

(a) vary the original decision or order made under section 31; or

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

Costs of the board

36. (1) Where a person who was ordered to pay the costs of the board under paragraph 30(2)(e) or 31(3)(e) fails to pay in the time required, the board may suspend the membership of that person until the costs are paid.

(2) Costs ordered to be paid under paragraph 30(2)(e) or 31(3)(e) are a debt due the board and may be recovered by the board by a civil action.

Collection of fine

37. (1) Where an order is made under section 30 or 31 imposing a fine on a respondent, the board may issue a certificate stating the amount of the fine due and remaining unpaid and the name of the person by whom it is payable, and file the certificate with the Registrar of the Supreme Court.

(2) Where a certificate is filed with the Registrar of the Supreme Court under subsection (1), it has the same effect and all proceedings may be taken on the certificate as if it were a judgment of the Trial Division for the recovery of the amount stated in the certificate against the person named in the certificate.

(3) A person named in a certificate filed under this section may, within 30 days after the certificate is filed, apply to a judge of the Trial Division for a review, on a question of law or jurisdiction, of the certificate.

(4) On an application under subsection (3), the judge may make any amendment to the certificate that is necessary to make the certificate accord with the judgeís decision.

(5) There is no appeal from a decision of a judge made under this section.

(6) A certificate filed under this section may also be filed in the judgment enforcement registry on the expiration of the 30 day period referred to in subsection (3) in accordance with Part III of the Judgment Enforcement Act and be enforced in accordance with that Act.

Appeal to Trial Division

38. (1) The board or the respondent may, within 30 days after receiving notice of a decision or order of an adjudication tribunal under this Act, appeal the decision or order to the Trial Division by filing a notice of appeal with the Registrar of the Supreme Court.

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

PART V
GENERAL

Referral

39. A practitioner shall refer to a medical practitioner registered under the laws of the province a person consulting the practitioner where the practitioner has reason to suspect the person has a condition that requires a medical opinion or medical or surgical treatment.

Pharmaceuticals

40. A practitioner shall not prescribe or administer pharmaceutical agents except in accordance with a certificate issued under the regulations.

Use of trade name

41. (1) A practitioner shall not use a trade name or corporate name in connection with the practice of optometry, except as permitted in Part III.

(2) Subsection (1) does not prevent a practitioner from practising optometry in a partnership with one or more practitioners under a firm name that includes the surname of one or more of the practitioners.

Use of certain titles

42. A person, other than a person holding a valid and existing licence under this Act, shall not use the title "Optometrist" or a word, abbreviation, or letters or signs having a similar meaning.

Inspection

43. (1) The board may appoint a representative to inspect places where optometry is practised in the province.

(2) A representative may enter, without notice, places where optometry is practised at reasonable times to make necessary inspections.

(3) A representative shall report to the board and the relevant practitioner the results of an inspection together with recommendations where unethical, unsanitary, illegal or improper conduct, condition, practice or procedure is found.

(4) A recommendation of a representative that is not promptly and adequately adopted and carried into effect by the relevant practitioner shall be dealt with as an allegation under Part IV.

Action prohibited

44. An action for damages shall not lie against the board, disciplinary panel, adjudication tribunal or the individual members of those bodies, the registrar, or an officer, employee or representative of the board for

(a) an act or failure to act, or a proceeding initiated or carried out in good faith under this Act, or carrying out their duties or obligations as an officer, employee or member under this Act; or

(b) for a decision or order made or enforced in good faith under this Act.

Offence

45. A person who

(a) is not registered in accordance with this Act, and who, by himself or herself or by another person practises optometry or holds himself or herself out as qualified or entitled to so practise;

(b) knowingly helps another in the contravention of this Act;

(c) permits or allows a person in his or her employ other than a registered optometrist to practise optometry;

(d) obtains or attempts to obtain for himself or herself registration in accordance with this Act by making a false or fraudulent representation or declaration, either orally or in writing; or

(e) contravenes this Act or the regulations,

is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000 and in default of payment to imprisonment for a term not exceeding 3 months or to both a fine and imprisonment.

Proof

46. The use by a person of test lenses, trial frames or other appliances for measuring the human eye or testing the vision of the human eye is, in the absence of evidence to the contrary, proof that the person is practising optometry.

Regulations

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

(a) prescribing the academic qualifications and examinations and other qualifications for the licensing of persons to practise optometry;

(b) prescribing the qualifications for a practitioner to be permitted to prescribe and administer pharmaceutical agents designated in the regulations and providing for the issuance of a certificate to qualified practitioners to prescribe and administer those pharmaceutical agents;

(c) designating the pharmaceutical agents and dosages that may be prescribed and administered by a practitioner holding a certificate permitting him or her to prescribe and administer pharmaceutical agents;

(d) prescribing the qualifications for a practitioner to be permitted to remove superficial foreign bodies from the human eye and surrounding tissue;

(e) respecting the registration and licensing of professional optometric corporations;

(f) respecting alternative dispute resolution for the purposes of Part IV and the procedure for that resolution; and

(g) prescribing time limits for events in the disciplinary process in Part IV, including time limits for

(i) the filing of an allegation,

(ii) the conduct of an investigation under section 27,

(iii) consideration of an allegation by the complaints authorization committee following completion of an investigation,

(iv) responding to a complainant and respondent at each stage of the process,

(v) the conduct of a practice investigation under subparagraph 27(3)(c)(ii),

(vi) the appointment of an adjudication tribunal under section 28, and

(vii) the conduct of a hearing and the filing of a decision or order by an adjudication tribunal following completion of the hearing.

Fees and forms

48. The board may set fees and prescribe forms for the purpose and administration of the Act.

Transition

49. (1) The members of the Newfoundland Optometric Board are continued as directors of the board until an election is held under this Act.

(2) An election to elect the 4 directors referred to in paragraph 6(2)(a) shall be held within one year after the day this Act comes into force.

(3) Of the directors first elected under section 6 of the Act,

(a) 2 shall be elected for a term of 3 years; and

(b) 2 shall be elected for a term of 2 years.

(4) Notwithstanding subsection (1), the persons appointed to the board by the minister under paragraph 12(1)(b) of the Optometry Act are continued as directors of the board until their term of office expires or a replacement is appointed under this Act.

SNL1994 cP-12.1 Amdt.

50. (1) Paragraph 2(p) of the Pharmaceutical Association Act, 1994 is amended by deleting the word "or" at the end of subparagraph (iii) and by adding immediately after subparagraph (iii) the following:

(iii.1) an optometrist as defined in the Optometry Act, 2004, or

(2) Subsection 3(1) of the Act is amended by adding immediately after paragraph (c) the following:

(c.1) an optometrist licensed and acting under the Optometry Act, 2004;

(3) Subsection 58(2) of the Act is amended by adding the following immediately after paragraph (b):

(b.1) an optometrist licensed under the Optometry Act, 2004;

RSNL1990 cO-7 Rep.

51. The Optometry Act is repealed.

Commencement

52. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.

 

 

 

 

 

 

 

©Earl G. Tucker, Queen's Printer