Using Every Regulatory Tool (During a Pandemic)

When there needs to be a significant change in how a profession is practised, what are one’s options? Typically there are three options: enact a law, provide a guideline, or direct practitioners to exercise professional judgment towards an identified goal. All three options are being exercised by the Chief Medical Officer of Health of Ontario (CMOH) in restarting non-essential services.

On March 19, 2020, the CMOH updated a Directive to health care providers that largely limited the provision of health care services to essential services. However, on May 26, 2020, the CMOH updated that Directive for the purpose of enabling a gradual restart of deferred, non-essential and elective services. Practitioners are required to comply with an accompanying Operational Requirements document. That document includes such requirements as performing both an organization-wide and individualized patient point of care risk assessment. Hazard controls must be implemented including using remote service techniques where possible, installing engineering and system control measures where feasible (e.g., plexiglass barriers), administrative control measures (e.g., screening staff, patients and essential visitors for symptoms of COVID-19), and using appropriate personal protective equipment (PPE).

The Directive is made under s. 77.7 of the Health Protection and Promotion Act and thus has the force of law. It is an offence to breach the Directive.

However, the Directive and the Operational Requirements refer to guidelines provided by the regulatory body for each profession. Typically those guidelines will provide more detail about the hazard controls mentioned above, but tailored to the usual practice settings of each profession. For example, a regulator’s guidelines will often provide criteria for screening patients, obtaining informed consent, staff training, how to perform specific activities like receiving payment for services directly by the patient, and specific PPE expectations in various circumstances (e.g., in what circumstances PPE must be replaced during the day). While guidelines are typically the expression of expectations, in this case there appears to be some additional teeth to the guidelines since both the Directive and the Operational Requirements use mandatory language requiring practitioners to adhere to them.

However, despite the use of mandatory language throughout the Directive, Operational Requirements and guidelines, these documents place a heavy emphasis on the exercise of professional judgment by practitioners. For example, on the core issue of which patients should receive services, the Directive provides “principles” to guide practitioners including proportionality (i.e., the capacity of individual practitioners, offices and clinics to offer services); minimizing harm to patients (i.e., prioritizing procedures that can result in more significant harm if delayed too long); equity (i.e., clinical urgency, considering disadvantaged or vulnerable individuals); and reciprocity (i.e., monitoring the health care status of individuals who do not yet appear to require services immediately).

Similarly the Operational Requirements indicate numerous situations in which practitioners should exercise professional judgment. These include the suggestion that restarting services should be gradual, identifying which patients require in-person as opposed to remote services, which patients to prioritize, and ensuring that consideration be given to “inter-dependencies and collaboration” (e.g., that there are homecare and rehabilitation services available for any procedures performed).

The CMOH is attempting to use all available tools in the reopening of health care services to non-essential services. The Directive and Operational Requirements can be found at:
https://sml-law.com/wp-content/uploads/2020/05/Directive-2-May-26-2020-1.pdf ; and https://sml-law.com/wp-content/uploads/2020/05/Operational-Requirements-for-Health-Sector-Restart-May-26-2020-1.pdf

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