Perspectives for the Professions
When the last of the Bill 21 amendments to the Health Professions Act came into force on April 1, 2019, each health regulatory College was required to establish a patient relations program. These programs assist patients who have suffered sexual abuse or misconduct by a regulated health professional by directing them to appropriate resources and people who can help.
As of April 1, 2019, each College was required to provide funding for patients who are the subject of a complaint about sexual abuse or misconduct by a regulated health professional. The funding allows access to treatment or counselling services, but the details of the program were initially undefined. Section 135.9(5) of the Health Professions Act states that the funding must be provided in accordance with the regulations, but until now there were no regulations for the program. Colleges have been following non-binding guidelines in an effort to give the programs effect.
On December 2, 2020, the Lieutenant Governor in Council issued an Order in Council making the Treatment and Counselling Regulation, Alberta Regulation 256/2020. The Regulation imposes new obligations on Colleges. Highlights of the Regulation include:
A patient becomes eligible for funding through the program if a complaint has been made, or if the College's Complaints Director treats information as a complaint and the complaint is in relation to sexual abuse or sexual misconduct towards that patient. Funding is only available for treatment or counselling services. Program funds cannot be used for other purposes.
Time Limit for Initial Funding Request
Colleges are required to provide all of the information necessary for an eligible patient to request and access funding.
Eligible patients must make an initial request for funding in the period beginning when the complaint is initiated and ending 5 years after a finding of unprofessional conduct based in whole or in part on sexual abuse or sexual misconduct. Patients who do not make a request for funding within this period cease to be eligible.
Choice of Treatment or Counselling Providers
Eligible patients may select any number, or combination of regulated health professionals as their treatment or counselling providers. Before funds can be advanced:
- The patient must notify the College of their chosen treatment or counselling providers;
- The College must confirm that the treatment or counselling providers are regulated health professionals in good standing; and
- The patient and the treatment or counselling providers must each confirm in writing that they have no familial relationship, and that funds will only be used to pay for the treatment or counselling services provided to the patient.
Patients may also select an unregulated member of the Association of Counselling Therapy of Alberta as their treatment or counselling provider. In this case, funding can only be advanced if the unregulated counselling professional provides written confirmation of their membership in the Association of Counselling Therapy of Alberta, and the patient provides written confirmation that they understand the counselling professional is not subject to professional discipline. Written confirmation that there is no familial relationship between the patient and the counselling professional is also required.
Colleges can receive invoices and advance funds directly to the treatment or counselling provider, or to the patient to reimburse them for treatment or counselling expenses upon receiving original signed receipts.
Availability of Retroactive Funding
Eligible patients who received treatment or counselling after an incident but before a complaint may receive funding for that treatment or counselling.
Maximum Funding Amount
The maximum that a College may be required to advance for an eligible patient's treatment or counselling is the equivalent of 100 hours of psychiatric counselling according to the psychiatrist rate in the Schedule of Medical Benefits. Any changes to the Schedule of Medical Benefits during the patient's period of eligibility do not change the maximum funding they may receive.
Keeping Track of Spending
Colleges will be responsible to monitor patients' use of the funding and notify them every 90 days of their remaining available funding. Once a patient's total remaining funding reaches $500 or less, the College must notify the patient of the remaining funding within 15 days. When patients reach one year of remaining funding eligibility, Colleges must also notify patients of the date their eligibility will end.
Cessation of Funding Eligibility
A patient's eligibility to receive funding ceases upon any of the following, whichever occurs first:
- The maximum amount of funding has been provided;
- A Hearing Tribunal determines that the regulated health professional's conduct does not constitute unprofessional conduct based in whole or in part on sexual abuse or sexual misconduct1;
- The complaint is withdrawn2;
- 5 years have passed since the initial request for funding was received;
- The Complaints Director dismisses the complaint under section 66(3)(b) of the Health Professions Act, following an investigation3.
Colleges are required to notify a patient in writing, with reasons within 15 days of the cessation of their eligibility to receive funding.
Requests for Complaint Review Committee Reviews
If the Complaints Director dismisses a complaint under section 66(3)(b) of the Health Professions Act following an investigation, the Complaints Director must notify the patient within 15 days. The Health Professions Act already requires the Complaints Director to notify the complainant when a complaint is dismissed. The Treatment and Counselling Regulation requires that notice also be given to the patient if the patient and the complainant are different people.
The Complaints Director must notify the patient that their funding eligibility has ceased, but they may apply for a review of the dismissal of the complaint by the Complaint Review Committee. The patient must also be advised that if they apply for a review, the College will reinstate their eligibility for funding retroactive to the date the complaint was dismissed and that their eligibility will continue until the matter has been fully disposed of. The Complaints Director must include contact information for relevant community resources, if any, that may assist the patient in seeking alternative treatment or counselling supports.
Recovering Funds from the Regulated Member
A College that provides funding may recover those funds from a current, or former regulated health professional if they are found to have committed unprofessional conduct based in whole or in part on sexual abuse or sexual misconduct while they were a regulated health professional. The Treatment and Counselling Regulation provides that the College may do this by bringing a lawsuit against the regulated health professional.
The Hearing Tribunal currently has the power to direct an investigated person found guilty of unprofessional conduct to pay "expenses of the College directly attributable to the investigation or hearing" under section 82(1)(j)(vi) of the Health Professions Act. It is not clear whether this would include treatment and counselling expenses.
Coming into Force
The Treatment and Counselling Regulation comes into force 6 months after it was filed under the Regulations Act. Filing occurred on December 2, 2020 so the Regulation will come into force on June 2, 2021.
Colleges must ensure their patient relations programs will be consistent with the Treatment and Counselling Regulation prior to June 2, 2020.
1. The Regulation does not address what would happen if a College's Council or the Alberta Court of Appeal were to make this determination in the course of an appeal proceeding.
2. It is not clear what would happen to a patient's eligibility for funding if the complainant and the patient are different and the complainant withdraws the complaint.
3. The Regulation does not prescribe what would happen if a complaint is dismissed without an investigation, under section 55(2)(e) or (f).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.