Bill 46: Proposed Impact on Professional Regulatory Organizations

On November 5, 2020, Alberta’s Minister of Health, Tyler Shandro, introduced Bill 46: Health Statutes Amendment Act. Bill 46 includes proposed amendments to a number of health care statutes, including the Health Professions Act (“HPA”) and the Health Information Act.

Bill 46 passed third reading on December 8 and received Royal Assent on December 9. The changes that come about as a result of this Bill will impact professional regulatory organizations.

Here is a summary of the changes to the HPA. Most of the provisions of the Bill will come into force upon Proclamation (which has not yet occurred). However, the changes described below under the heading *Disclosure of Personal Information“ are now in effect.

Health Services Restricted Activities

Bill 46 moves the list of restricted activities from the Government Organization Act into the HPA under a new Part 0.1. This new Part 0.1 creates new rules and requirements regarding restricted activity.

Bill 46 takes away the power of colleges to make regulations regarding restricted activities. Instead, the Lieutenant Governor in Council would make regulations respecting the restricted activities that regulated members may perform. However, the Lieutenant Governor in Council would only be able to add or remove a restricted activity if the Minister has recommended the change and the Minster has consulted with the college.

College’s Role and Separating Professional Associations

Bill 46 updates the role of colleges and allows them to carry out functions not specifically set out in the HPA, as long as they are consistent with their role.

Bill 46 prevents a college from acting or holding itself out as a professional association. However, it allows colleges to collaborate, cooperate or engage the services of a professional association, labour union or regulatory body as long as the activities are consistent with their role. It is currently unclear how “a college must not act or hold itself out as a professional association” will be interpreted and applied.

For colleges currently serving or purporting to serve as a professional association, if Bill 46 is passed, they will have 6 months to provide the Minister with a plan to divest itself of its professional association functions, and 18 months to remove any functions as, connection to, or affiliation with a professional association.

Bill 46 prevents an officer or senior employee of a professional association or a labour union representing a regulated health profession from acting as:

• Member of council;
• Member of a registration committee, competence committee or hearing tribunal;
• Complaints director or complaints director’s delegate;
• Hearings director or hearings director’s delegate;
• Registrar or the registrar’s delegate;
• President of a council or president’s delegate.

Competence Committee

Currently, under the HPA, a college must establish a competence committee if the college is authorized by regulation to undertake practice visits. Bill 46 says a college must establish a competence committee if the college is authorized by standards of practice to undertake assessment of a regulated member’s competence.

Bill 46 requires colleges to establish a continued competence program in its standards of practice within 18 months after Bill 46 comes into force.

New Regulated Professions

Bill 46 introduces new requirements for an application for a new regulated profession, in addition to the existing requirements set out in section 25 of the HPA. The application must include a rationale for why a new college should be established and why an existing college is not sufficient. The application must also include a preliminary budget for the proposed profession.

Bill 46 introduces requirements for an application for a group to be part of an existing college. The application must provide a written statement of support from the existing college, and confirmation that the members of the proposed profession will be regulated members of the college with the same rights and duties as existing members of the college.

Bill 46 introduces requirements for an application for the amalgamation of existing colleges. The colleges must apply to the Minister to amalgamate the colleges. The proposed new section 25.1 sets out the requirements for this application.

Applications for Registration

Bill 46 introduces new requirements for applications for registration as a regulated member. A person must have evidence of whether they have previously been disciplined in another regulatory body responsible for the regulation of the profession or another profession. If requested, they must provide evidence of their fitness to practice. The registrar may request evidence of good character and reputation from an applicant.

Applications for Practice Permits

Bill 46 proposes changes to section 40 of the HPA, which governs applications for practice permits. One change is, if requested, an applicant must provide current evidence of their character and reputation, and, if requested, must provide evidence of their fitness to practice.

There is also a proposed new section 40.1 which allows the registrar, complaints director, registration committee or competence committee to impose conditions on a regulated member’s practice permit.

Reinstatement of Practice Permits and Registration

Bill 46 introduces a new section 45.1 which sets out the process for applying for reinstatement if a member’s practice permit or registration has been cancelled under Part 4 of the HPA. In the current HPA, the rules are in the regulations. Bill 46 would move these rules into the HPA.

Alternate Complaints Resolution

Bill 46 proposes that the process for conducting alternative complaint resolution is moved from the regulations into the HPA. Under Bill 46, the complaints director must appoint a person to conduct the alternative complaint resolution process. This person must establish the procedure for and objectives of the alternative complaint resolution process, in consultation with the complainant and the investigated person.

Publishing and Distributing Information

Bill 46 allows the registrar to publish or distribute information respecting any order made by a hearing tribunal or council under Part 4.

Bill 46 moves the timelines for providing information to a member of the public from the regulations into the HPA.

Power of the College

Currently, section 131 of the HPA gives the college the power to make regulations respecting a number of topics. Bill 46 repeals a number of these powers.

Bill 46 increases a college’s power to make bylaws. The proposed changes would allow colleges to make bylaws covering a broader range of topics.

Here is a summary of the proposed changes to the Health Information Act.

Disclosure of Personal Information

These changes are now in effect. Bill 46 increases the power of custodians to disclose individually identifying health information. Under Bill 46, information could be disclosed if authorized by an enactment of Alberta or Canada.

Under the current Health Information Act, custodians may disclose individual diagnostic, treatment, and care information without consent to a person if the disclosure will avert or minimize an imminent danger. Bill 46 proposes this should be amended to allow disclosure merely if it will avert or minimize a significant risk of harm.

In the current Health Information Act, a custodian is required to obtain written consent from an individual if they are collecting health information from them using a recording device or camera or other device that may not be obvious to the individual. Bill 45 proposes to amend this section to only require a custodian to obtain written consent before collecting health information if they are using a device that may not be visible to the individual.

Alberta Electronic Health Record

The proposed changes include a new section for department authorities and duties related to the Alberta Electronic Health Record system. This section allows the department to manage and operate the Alberta Electronic Health Record system and provides the rules and guidelines for the department to follow.

Under Bill 46, the Lieutenant Governor in Council has significantly more power to create regulations with respect to the Alberta Electronic Health Record system.

Penalty for Contravention

Under Bill 46, the penalty for a contravention of the Health Information Act is increased from $50,000.00 to $200,000.00 for an individual and $1,000,000.00 for any other person.

Our team will continue to monitor the status of Bill 46. As more information becomes available, we will provide it. If Bill 46 is passed, we will offer further information and assistance to help you adapt to the new legislation.

If you have any questions about the proposed amendments or how they could apply to you, reach out to the authors of this post or any member of our Professional Regulatory Team.