As most of you will already be aware, on January 16th of this year our firm co-presented a 2 hour webinar with the Victoria-based firm of Lovett & Westmacott in which we addressed how professional regulation interfaces with human rights and the Charter. We had various questions from participants during the Q&A period of this webinar; however, there are two outstanding questions which we were not able to address within the confines of the webinar. Both these questions relate to how regulators can best address issues of capacity when registrants or applicants may suffer from physical and/or mental disabilities that put into question their fitness to practice or otherwise require accommodation. As promised, we are endeavoring to answer these questions through our blog in this post.
One of our webinar participants asked us the following question: “What are the tests to determine whether a person has or does not have a learning disability as defined by the Charter and/or BC law?”
There is no legal test to determine whether or not a person has a learning disability. This is a diagnosis to be made by health care practitioner with the appropriate competence and scope of practice to make such an assessment. In order for a regulatory body to understand how it can accommodate the mental disability asserted by an applicant or registrant, it may be appropriate to request further information regarding the nature and extent of the disability, and the limitations or special considerations that arise from that disability.
Another webinar participant asked us for the following information: “Can you provide some examples of best practice by regulators to determine fitness to practice?”
Best practices for determining fitness to practice for a registrant or applicant is a complicated and extensive topic that cannot be comprehensively addressed in one blog entry. Through our blog we often provide posts that deal with specific issues that may be faced by regulatory bodies in assessing fitness to practice. For example, in the past we have blogged on the potential human rights consequences for regulators when consent agreements are relied on to address perceived fitness issues (here), or the implied power of a registration committee to hold an oral hearing on fitness to practice and character issues when credibility is at issue (here). For those who attended the conference we co-presented with Lovett & Westmacott in June of 2011, we also dedicated a significant portion of conference to this topic. For the benefit of our readers and viewers who did not attend that conference, we have reproduced five practical steps for addressing fitness to practice issues in registration from page 25 of these materials:
- when asking applicants about specific physical or mental conditions that justify further investigation, consider cut-off dates (either as part of the question, or as part of the evaluation) for treatments or symptoms that pre-date a certain period.
- consider whether the case is one where the applicant can reasonably be assumed to manage the effects of his or her condition so that any capacity issues that subsequently arise are addressed through the complaint and investigation process.
- consider whether a “letter of expectation” setting out expectations may suffice in lieu of the formal imposition of limits or conditions.
- ensure that the registration decision-making process is sufficiently flexible to minimize delays in processing applications (i.e. have more frequent committee meetings).
- ensure that a requirement for a medical assessment to establish fitness is only imposed when there is a proper basis for concluding a real risk of harm. […]
These are just a few examples of best practices for regulatory bodies to follow when dealing with fitness to practice issues in registration to avoid the risk of human rights or Charter challenges.