At the direction of the Minister of Health Planning, the Health Professions Council is reviewing the scopes of practice and legislative framework for all recognized health professions in British Columbia. The Terms of Reference given to the Council set out the framework of a new model for regulating the health professions.

At the time of the reference from the Minister, the scopes of practice of the regulated health professions in the province were framed in exclusive and restrictive terms. The right to provide health services falling within the scope of practice of a particular profession was restricted to persons who were members of the regulatory body of that profession or to those who were specifically exempted from the restrictions.

Under the new regulatory framework set out in the Terms of Reference, scope of practice statements for health professions will no longer be exclusive. Henceforth, a scope of practice statement will define an individual profession's activities in broad, non-exclusive terms. Defined in these terms, aspects of the scope of practice of each health profession may overlap, or be shared, with those of other health professions.

Within this framework of shared scopes of practice, the Terms of Reference recognize that certain tasks or services performed by a health profession may carry such a significant risk of harm to the health, safety or well-being of the public that they should be reserved to a particular profession, or shared amongst qualified professions. The only restrictive element of a profession's scope of practice will be any reserved acts within that scope.

Thus, unlike the present system in which each profession is granted exclusivity within its entire defined scope of practice (subject to specified exceptions), only those acts which present a significant risk of harm will be reserved. In short, the government has assigned the Council the task of creating a regulatory model based on broad, non-exclusive scope of practice statements and narrowly defined reserved acts.

The four elements of the scope of practice review are scope of practice statements, reserved acts, supervised acts and reserved titles. The Council has previously provided direction regarding the issues of scope of practice statements and reserved titles but believes that some clarification of reserved acts and supervised acts is necessary in order to provide focus for the scope of practice review process.

An earlier version of this paper was sent out for consultation to all health professional associations and regulatory bodies, representatives of alternative health care groups and other interested parties. The Council met to discuss the responses to consultation, and this version of the paper incorporates many of the comments made.

The Council intends to use this paper, in conjunction with the Terms of Reference, as it proceeds with the scope of practice review.

1. RESERVED ACTS

Reserved acts are an important element of the new scope of practice model reflected in the Terms of Reference. Reserving only those acts which present a significant risk of harm ensures that the focus of professional regulation remains public protection and not the enhancement of professional status or control. The new model also allows for greater consumer choice in the delivery of health care services. Indeed, the Council's fundamental objective in conducting the scope of practice review is to attain the optimum balance between consumer choice and public safety.

The Council felt it important to establish some basic principles to guide it in its assessment of what is a significant risk of harm. In this regard, the Council was assisted, in part, by the 1994 report of the Manitoba Law Reform Commission, Regulating Professions and Occupations. That report indicated that regulation should not be imposed unless the threat of harm to the public is serious. The report stated that three factors should be evaluated in considering the seriousness of a threatened harm:

• the likelihood of its occurrence;

• the significance of its consequences on individual victims;

• the number of people it threatens.

In the Council's view, it is not always easy to determine the point at which a threat of harm associated with an act becomes serious enough to justify reserving it. The three factors listed above will guide us in that decision.

Several respondents to the consultation, including the College of Physical Therapists, the BC Dieticians' and Nutritionists' Association and the BC Nurses' Union, questioned the third factor. Their basic point was that if an act is dangerous it should be reserved regardless of the number of people it threatens. The Council agrees. The Council emphasizes that the list of factors are not criteria that must all be met; they are intended only as a guide to the factors that must be balanced in determining whether an act should be reserved. An act need not satisfy all three factors to be reserved. A procedure determined to have significant consequences (factor two) will be reserved regardless of the number of people it threatens. In short, factor three indicates that the Council will consider the risk in proportion to the number of people threatened, but it does not mean that a very dangerous act which threatens only a small group of people will not be reserved.

With this policy background in mind, the Council reviewed the scope of practice submissions, the responses to the submissions, various published materials, the regulatory model currently in place in Ontario, and the model being developed in Alberta. The Council considered the list of controlled acts used in Ontario, and with modifications, decided to use it as a guide as it proceeds through the profession-specific reviews.

The list is phrased more in terms of general descriptions, and professions can expect that, for the most part, particular professions will be granted more specific activities that fall within the general category or description. For example, it may be the case that one profession will be granted the reserved act of prescribing drugs while others may only be granted the reserved act of prescribing particular drugs. Also note that some activities may fall within more than one reserved act. For example, administration of an intramuscular injection will fall within both Reserved Act 2(a): "performing a procedure below the dermis" and Reserved Act 5: "administering a drug".

Finally, note that the list is the Council's working list and changes may be made to the list depending on the information arising during the scope review process, or the Council's ongoing review of applications for designation.

In the following discussion, the reserved acts appear in bold with accompanying comments in regular typeface.

Footnote:
The reserved acts are listed in their August 2002 modified form at this link.

1. Making a diagnosis identifying a disease, disorder or condition as the cause of signs or symptoms of the individual.

The Council believes it important to distinguish between diagnosis and assessment. Essentially, diagnosis is the identification of the cause of signs or symptoms. Assessment is a process of observation and evaluation of the physical status or progress of a patient, which may involve observation of symptoms, but does not include naming or identifying a disease, disorder, or condition as the cause of these symptoms.

In the Council's view, all health care practitioners assess a client's progress and response to services rendered. Practitioners who offer assessments have provided information to the Council on this issue, either in recent applications for designation or in submissions in the scope of practice review. Such practitioners include: counsellors, rehabilitation practitioners, prosthetists and orthotists, athletic trainers and recreation therapists.

In the Council's view, it is the identification of a disease, disorder or condition as the cause of signs or symptoms of the individual which should be a reserved act, and the process of assessment should continue to be in the public domain. Both regulated and unregulated practitioners would be free to perform assessments during the course of providing health care services, subject always to the proposed general risk of harm clause.

The College of Massage Therapists submits that communication should be added to this reserved act. However, the Council believes that the fundamental harm associated with the act of diagnosis resides in the act of diagnosis, not communicating a diagnosis.

The BC Nurses' Union submits that assessing a patient or client in order to make a diagnosis identifying a disease, disorder or condition as the cause of signs or symptoms determined during the assessment should be included as a reserved act. Thus, the Nurses' Union does not appear to dispute the Council's exclusion of assessment from the reserved acts list but suggests that a modified form of assessment, a nursing diagnosis, should be reserved to registered nurses.

In the Council's view, the reserved act proposed by the Nurses' Union would fall within the general reserved act of diagnosis as defined above. However at this stage in the process the Council is not determining which acts or aspects of the acts will be reserved for specific professions. That is an issue which will be considered in the profession specific reviews. Therefore, the Council defers consideration of the Nurses' Union proposal.

2. Performing the following physically invasive or physically manipulative acts:

In considering the preamble, the College of Chiropractors submits that "physical manipulation" is in the public domain and including it in the preamble to this reserved act creates confusion. The Council disagrees. The wording of this act is clear; it is not intended to reserve all physically manipulative or physically invasive acts, and the Council does not believe any confusion would arise.
(a) procedures on tissue below the dermis, below the surface of a mucous membrane, in or below the surface of the cornea, in or below the surfaces of the teeth, including the scaling of teeth;

The College of Physical Therapists submits that the term "procedures on tissue below the dermis" requires further clarification, noting that there are modalities which affect tissues below the dermis but which do not require the penetration of the dermis. In the Council's view "procedures on tissue below the dermis" clearly includes only acts requiring a puncturing of the skin, and the type of acts described by the College of Physical Therapists would not fall within this reserved act.

(b) setting or casting a fracture of a bone or reducing a dislocation of a joint;

In reviewing information about the Alberta and Ontario models, the Council was persuaded of the general risk involved in setting or casting a fracture or reducing a dislocation of a joint. Clearly, professional expertise and training are required.

(c) movement of the joints of the spine beyond the limits the body can voluntarily achieve but within the anatomical range of motion using a high velocity, low amplitude thrust;

The Council received considerable information from the B.C. College of Chiropractors, the College of Physical Therapists of B.C. and various other respondents on the issue of chiropractic adjustment, spinal manipulation, mobilization and manual therapy. The above description of the reserved act represents what the Council believes, after a thorough review of the information provided by the professions as well as a review of relevant literature, to represent the most concise definition of the specific procedure which presents a significant risk of harm in this category.

(d) administering a substance by injection or inhalation;

The Council has determined that there are serious risks involved in the act of administering substances which do not qualify as drugs under Reserved Act 5, below, and that these activities should be restricted. The substances of concern include intravenous fluids, oxygen and gases which, if improperly administered, can cause extremely serious or life threatening complications.

The Pacific Coast Association of Aromatherapy submits that the use of essential oils should be included on the list of reserved acts. However, the Council has not been presented with information which sufficiently outlines the risk of harm associated with this practice, and does not believe it should be reserved.

The BC Nurses' Union submits that other forms of administration such as "irrigation, instillation, and via catheters or other instruments" should be included within this reserved act. In the Council's view, however, the risks associated with such procedures would fall within other reserved acts such as (e), below.

(e) putting an instrument, hand or finger(s),
• beyond the external ear canal,

• beyond the point in the nasal passages, where they normally narrow,

• beyond the pharynx,

• beyond the opening of the urethra,

• beyond the labia majora,

• beyond the anal verge, or

• into an artificial opening into the body.

The College of Physical Therapists, the College of Massage Therapists and the BC Nurses' Union all supported adding "hand or finger(s)" to this reserved act. The Nurses' Union provided specific examples of the harm that can arise from the use of hands or fingers in various circumstances, and the Council was persuaded that "hand or finger(s)" should be added to this reserved act.

3. Managing labour or delivery of a baby.

The management of labour or delivery is a distinct act which carries an independent risk of harm. In the Council's view, while the reserved acts of diagnosis and using instruments may be encompassed within this reserved act, the professional judgment and expertise involved in the management of labour or delivery carries an independent risk.

4. Applying or ordering the application of a hazardous form of energy including diagnostic ultrasound, electricity, magnetic resonance imaging, lithotripsy, laser and X-ray.

The Council decided that this act should be made non-exhaustive for the present time but should clearly indicate the types of energy that would fall within it. As the process proceeds, the list will be developed further. The Council recognizes that there may be other regulatory controls in place which affect this area. However, the Council's mandate is in respect of the health professions, and determining what tasks or services present such a significant risk of harm that they should be reserved to qualified health professionals. Therefore, in including this act on the list the Council has not taken into account the other regulatory controls which may affect delivery of these services.

The Council received several submissions requesting clarification of this reserved act, for example, from the College of Massage Therapists and the College of Physical Therapists. The Council's intention is that this reserved act remain non-exhaustive for the present time, and that at the end of the profession specific review process a comprehensive list of hazardous energy will be established.

However, the Council believes that some clarification at this stage in the process would be useful. First, regarding ultrasound, the Council does not believe that therapeutic as opposed to diagnostic ultrasound should be reserved as it has not been provided with evidence of harm associated with the use of ultrasound other than evidence of risk to the fetus. The Council notes that its conclusion on this point is consistent with the positions developed in the provinces of Alberta and Ontario. Second, the term "electricity" is not intended to cover all electrical energy but only more hazardous forms of electrical therapy such as electroconvulsive therapy, cardiac pacemaker therapy, cardioversion, defibrillation, fulguration and electrocoagulation. The comprehensive list of hazardous forms of energy will likely include such therapies, and it will be unnecessary to include the term electricity in the final version of this act.

5. Prescribing, compounding, dispensing or administering by any means a drug listed in Schedule I or II of the Pharmacists, Pharmacy Operations and Drug Scheduling Act.

For the purposes of this reserved act, the following definitions shall apply:

"prescribing": the ordering of a drug.

"compounding": mixing ingredients, at least one of which is a drug.

"dispensing": preparing or filling a prescription for drugs

The original version of this act included only the term "drug". The BC Dieticians' and Nutritionists' Association submits that the act should state "Prescribing, compounding or dispensing a drug, food or nutrient restricted under provincial or federal legislation. The Council accepts that there may be a risk of harm associated with such other substances but at the present time believes that the present federal and provincial regulatory system are sufficient to address the risks associated with such substances.

At this time this reserved act includes only substances which require a prescription (Schedule I to the provincial Pharmacists Act and substances which are sold "behind the counter" (non-prescription but must be sold from restricted area of pharmacy). This is essentially the way Ontario and Alberta defined this act.

6. Prescribing appliances or devices for vision, hearing or dental conditions; dispensing such prescribed appliance or device for dental conditions; fitting such prescribed appliances or devices for dental conditions, or fitting contact lenses.

The special training and skill involved in prescribing the devices described above is well documented in the submissions received to date. The risks associated with fitting contact lenses and dental appliances relate to the close contact with the skin, oral structures, mucous membranes or corneal surfaces involved in such fitting. The filling of a prescription for an appliance for dental problems requires special knowledge and skill regarding materials suitable for sustained use within the oral cavity including knowledge about contraindications, allergic responses and hazardous substances. All of these activities present significant risks of harm in the delivery of health care to individuals.

Several respondents, including the College of Opticians, the Vision Council of Canada, the Dispensing Opticians Association of BC, and the Opticians Association of Canada, submit that dispensing eyeglasses should be a reserved act. The Council is not satisfied that there is a sufficient risk of harm in the dispensing of eyeglasses to justify including it on the list of reserved acts.

Finally, the Council notes that the issue of dispensing hearing aids is under consideration by the application panel.

7. Allergy challenge testing in which a positive result of the test is a significant allergic response; or allergy desensitizing treatment in which there is a risk of significant allergic response.

The risk of harm in this reserved act is serious and can be life threatening. It should be carried out in a controlled setting by a health professional who is competent to perform such testing, and treat an allergic response.

2. SUPERVISED ACTS

The Criteria and Guidelines which are attached to the Terms of Reference state that although reserved acts may only be performed by certain professions, it may be appropriate for other persons to perform them, or aspects of them, under the supervision of members of those professions. The Terms of Reference also indicate that where the Council is satisfied that a reserved act may be performed under supervision, it may recommend training and qualification requirements, limitations regarding where the act may be performed and the degree of supervision which should be exercised.

The Council believes that some clarification of terms would be useful as the Terms of Reference do not define "supervision". In reviewing the responses to the scope of practice submissions, most professions have used the terms delegation and supervision interchangeably. However, technically, there appears to be a distinction between the terms.

In his book A Complete Guide to the Regulated Health Professions Act (Canada Law Book, 1995), Richard Steinecke discusses the meaning of these terms. Delegation occurs when the delegating professional makes a determination that an individual is competent to perform a task and that individual then carries out the task without the delegating professional being present. Supervision, on the other hand, implies a more intense control over the act than does delegation and will usually require the supervisor's physical presence.

In the Council's view, although this term of reference refers to "supervised" acts, it is intended to encompass any situation where someone other than the person to whom the reserved act has been granted performs that act. In other words, this term of reference refers to both delegation and supervision.

This term of reference implies that the Council will, for each reserved act granted to each profession, determine the circumstances in which the act may be performed by someone other than a member of that profession. Several respondents to the scope of practice consultation stated that the issue of delegation and supervision is a question of individual competence and the circumstances of each case, and that supervision of certain acts can be addressed only after a careful review of all the circumstances surrounding a particular act and by imposing, where necessary, clear guidelines, restrictions or conditions on such supervision.

These respondents further submit that compiling a list of acts which may be delegated or performed under supervision would not adequately address the complexities of situations which present to health professionals nor would it protect the public. The College of Physicians and Surgeons in its scope of practice submission states that there will be situations where, because of the individuals involved, the site or location, or the specific nature of the presenting problem, it may not be appropriate to delegate an act which might otherwise be capable of delegation.

The Council accepts much of this submission, and believes that it would be better to take a general approach to the issue of supervision. The general thrust of the approach is that the decision as to whether an act can be performed under supervision should be left up to the health professions, in accordance with a general set of principles. The Council believes that the general principles regarding delegation be enacted into legislation when the shared scope of practice model takes effect. The principles are derived largely from the Canadian Medical Association's Guidelines for the Delegation of a Medical Act which the College of Physicians and Surgeons enclosed with its submission.

Therefore instead of dealing with supervised acts individually for each profession, the Council makes the following general recommendation:

The Council recommends that a provision be enacted which deals with general principles regarding delegation of reserved acts. The provision would apply generally, not to individual cases. It should require the following:
• The assigning health professional's governing body must provide assent to the proposed reserved act being performed by someone else;

• The reserved act to be assigned as well as the level of supervision must be clearly defined and circumscribed by the assigning health professional's governing body;

• Where the person to whom the act will be assigned is a member of a self-regulated health profession, his or her governing body must approve of the assignment.

• The instruction to perform the act must be made in writing either by way of a general written protocol or through a case-specific instruction;

• The assigning health professional must be satisfied that the individual who will be performing the act has the necessary skills and training to perform the act safely;

• The assigning health professional must ensure that the person who will be performing the act accepts the assignment.

There are ethical and legal issues involved in assigning reserved acts which will have to be addressed by all parties.

Some respondents to the consultation, for example the College of Massage Therapists, stated that they believed the Council's proposal would require a College to approve delegations on a case-by-case basis. That is not the Council's intention. As noted, the requirement for approval of the governing body is meant to apply generally and not to individual cases, and would be satisfied by, for example, a general protocol in respect of delegation of a given act.

Several respondents to the consultation, for example, the Opticians' Association of Canada, submitted that some form of ongoing regulation in this area is necessary. Some of the suggested mechanisms were imposing a bylaw requirement or scrutiny by an independent body. The Council sees some merit to this proposal but is not prepared at this point to suggest that delegation protocols be contained in the rules or bylaws of the professions or that an independent body be given approval powers over such matters. The Council will review this matter further, and consider including such a recommendation in its final report.

The Council believes this general approach to supervised acts more accurately reflects the reality that procedures to be delegated vary from profession to profession and may include subsets and variations of reserved acts and further, may be performed under myriad circumstances and conditions.

Finally, the Council emphasizes that the issue of supervised or delegated acts arises only with respect to reserved acts. Thus, the general provision regarding supervision will not apply in respect of acts which are not reserved.

3. OTHER ISSUES

As noted, scope of practice statements and reserved acts are important elements of the new regulatory model. The Council believes, however, that the Terms of Reference do not contemplate all of the components or ramifications of the new regulatory model and that some important issues will need to be addressed in more detail prior to implementation of the new regulatory model. In this regard, the Council intends to include in its final report to the Minister recommendations regarding various issues, including the following:

(a) Health Care Services

It is important to clarify that the shared scope of practice model applies only to services being performed in the course of providing health care services. Thus, to the extent that reserved acts are performed in fields unrelated to health care, the model would not apply. The Council notes that in Ontario the general prohibition against performing a "controlled act" states that "No person shall perform a controlled act set out in subsection (2) in the course of providing health care services to an individual".

A similar issue was dealt with in a recent decision of the Supreme Court of British Columbia in which Mr. Justice Braidwood, in considering whether the Massage Practitioners Regulation had been violated, distinguished between therapeutic massage services and massage services that were not rendered in the course of delivering health care services. (see College of Massage Therapists of British Columbia v. British Columbia Telephone Company).

The College of Physical Therapists and the College of Massage Therapists questioned how the distinction between health care and non-health care services would be made. The shared scope of practice model is intended to regulate health care services and not for example, cosmetic services or tatoo artistry. Other regulatory mechanisms such as public health legislation are in place to address the risks associated with such activities.

The Council believes that the definition of "health profession" in section 1 of the HPA provides guidance in regard to the distinction between health care and non-health care services. That definition states:

"health profession" means a profession in which a person exercises skill or judgment or provides a service related to

(a) the preservation or improvement of the health of individuals, or

(b) the treatment or care of individuals who are injured, sick, disabled or infirm

In other words "health care service" may be defined as:

exercising skill or judgment or providing a service related to

(a) the preservation or improvement of the health of individuals, or

(b) the treatment or care of individuals who are injured, sick, disabled or infirm.

In the Council's view, persons providing such services cannot perform reserved acts unless they are granted them under legislation.

(b) Significance of Reserved Acts

It is important to understand the significance of an act being reserved in the provision of health care services. Once an act is reserved in the provision of health care services, it may only be performed by members of a regulated health profession who are authorized to perform that act under their professional legislation. In contrast, if an act is not reserved, it may be performed by regulated or unregulated practitioners.

(c) General Risk of Harm

Third, there should be a general risk of harm clause, which provides:

No one, other than a qualified health professional acting within the scope of practice of his/her profession, shall deliver health services in circumstances in which it is reasonably foreseeable that serious harm may result from the delivery or omission of such services.

This clause protects patients from (a) regulated professionals who do something harmful that is outside their scope of practice, and (b) unregulated practitioners who cause patients serious harm in the course of providing health care services. The Seaton Commission recommended the adoption of just such a clause at page D-33 of its report, "Closer to Home".

(d) Exemptions

The Council believes there should be a general list of exemptions from the shared scope of practice model. For example, in Ontario the following are exempted - either partially or totally - from the controlled acts model: administering first aid and temporary assistance in an emergency; students acting under the supervision or control of a member of the relevant profession; treating a person by prayer or spiritual means; treating members of one's own household; and assisting a person with routine activities of living (this is intended for, among other things, school settings or extended care facilities for disabled persons).

The Registered Nurses' Association submits that such exemptions would undermine the shared scope of practice model. However, the Council believes that the exemptions simply recognize the reality that in certain cases reserved acts will be performed by non-health care professionals. For example, parents in some cases will administer injections to their children.

The BC Nurses' Union suggests that the exception regarding treating members of one's own household should be modified by adding a requirement for teaching and support from a health professional. The Council believes such a requirement to be far too onerous given the scope of this exemption. While the Nurses' Union proposal would mean, for example, that a parent would have to seek advice prior to administering insulin to a diabetic child, in the Council's view, persons will seek and obtain the appropriate training and advice, where necessary, without making such a requirement mandatory.

The College of Physical Therapists indicated its concern with the exception for treating members of one's own household by stating that it strongly discourages its members from treating family members. The Council emphasizes that this exception is not intended to sanction health professionals treating members of their own family. That is an issue which the Council expects will be dealt with by each profession through its standards of practice and codes of ethics. The purpose of this exception is simply to prevent the prosecution of non-health care professionals performing reserved acts in a family context.