September 7, 2015

Professional Regulation and Traditional Aboriginal Healing

Aboriginal Law
Health Law
Professional Regulation

On June 1, 2015 the Truth and Reconciliation Commission released its report on the Indian residential school system and its impact on Aboriginal peoples (the “Report”).  The Report set out 94 action items including  #22 which called upon the Canadian health-care system “to recognize the value of Aboriginal healing practices and use them in the treatment of Aboriginal patients in collaboration with Aboriginal healers and Elders where requested by Aboriginal patients.”  A desire for Aboriginal healing practices and practitioners to be integrated into the mainstream Canadian health care system requires careful consideration about regulatory issues, such as who controls the licensing of Aboriginal healers, what standards should apply to Aboriginal healing practices, and what is or is not an Aboriginal healing practice.

In the Western model of professional regulation, places where we might expect to find Aboriginal engagement would include the following:

1.            Educating professionals about Aboriginal culture to facilitate provision of health care.

In B.C., the Provincial Health Services Authority developed the Indigenous Cultural Competency Program, which provides training and develop individual competencies for health care providers who work with Aboriginal people. The Program includes various basic and advanced courses for health, mental health, and other professionals, including knowledge about different Aboriginal groups, impacts of colonization, strategies for building collaborative relationships, and anti-racism skills.  The training is offered within the Ministry of Health and is used by some BC professional regulators to support the learning of their staff or professional members.

2.            Aboriginal people as registered professionals.

A review of regulatory website and discussions with various regulators indicates that regulators do not appear to track statistics of Aboriginal peoples as registrants of regulated health professions, or as members of boards or committees. The exception with respect to boards and committees is where a regulator has a specific task force that calls for Aboriginal health care knowledge.

3.            Aboriginal persons sitting on boards and committees within professional regulatory bodies.

For the most part, health regulatory colleges do not formally integrate Aboriginal interests into their bylaws but some notable exceptions arise.

In British Columbia, the College of Midwives of British Columbia has bylaws which establish a Committee on Aboriginal Midwifery. The Committee is required to consist of at least three Aboriginal persons appointed by the Board of the College (Bylaw s. 20(1) of the bylaws)).

In Alberta, the bylaws of the Alberta College of Social Workers provide that the Council may establish an Indigenous Social Work Committee (Bylaw s. 3.10), which is to include seven Aboriginal social workers, to act in an advisory capacity to Council on matters related to Indigenous social work practice (Bylaw s. 3.10.1). Additionally, where an Indigenous person requests a review (of any decision of a committee, such as the registration committee or a hearing tribunal), the review panel must include at least one Registered Indigenous social worker (and one shall be appointed if the Council does not have any Indigenous social workers) (Bylaw ss. 3.7-3.9).

In Manitoba, the mandate of the College of Midwives of Manitoba (under the Midwifery Act, C.C.S.M. c. M125) expressly requires the inclusion of an Aboriginal perspective.

4.            Traditional Aboriginal healing practices being incorporated into the scopes of practice and standards of existing professional regulatory bodies.

Many professions, such as pharmacists, nurses, and naturopathic physicians, are silent as to traditional Aboriginal healing practices, or “alternative” practices generally.  Generally speaking, only the colleges of three professions address Aboriginal healing practices, or more generally alternative therapies, in their legal structures in some way: physicians and surgeons, midwives, and social workers.

  • Exemption from regulation: For example, Ontario’s Regulated Health Professions Act simply does not apply to either “aboriginal healers providing traditional healing services to aboriginal persons or members of an aboriginal community”, or to “aboriginal midwives providing traditional midwifery services to aboriginal persons or members of an aboriginal community” (s. 35(1)) (emphasis added).
  • Inclusion in regulation: By comparison, the law of British Columbia generally prohibits any person from carrying on various health services, broadly defined, unless they are permitted to do so by regulation.  The BC Health Professions Act includes a provision which applies specifically to the College of Physicians and Surgeons which protects – to some degree – practices broadly described as “alternative medicine” (s. 25.4):

“Alternative medicine
“25.4 The college must not act against a registrant or an applicant for registration solely on the basis that the person practises a therapy that departs from prevailing medical practice unless it can be demonstrated that the therapy poses a greater risk to patient health or safety than does prevailing medical practice.” (emphasis added)

  • The extent to which traditional Aboriginal healing practices are permitted: In relation to both medicine and midwifery, although many provincial regulators are silent about traditional Aboriginal healing practices, some colleges do expressly permit registrants to provide “alternative” therapies. The regulation of midwives in Canada shows different regulatory approaches to Aboriginal interests, such as express allowances for Aboriginal practices, and the potential for a unique registration classes, with different entry requirements and different standards.

While the College of Midwives of British Columbia does not currently have a registration category for Aboriginal midwives, the Bylaws of the College establish a Committee on Aboriginal midwifery (consisting of at least three Aboriginal persons) which may, in addition to nominating persons to fill a position on each committee of the board, recommend bylaws in relation to the creation of classes of registration for Aboriginal midwives (s. 20(2)).

A different approach can be seen in Nunavut, where all continuing midwifery education in Nunavut must incorporate traditional Inuit midwifery knowledge, skills and judgment, under the Midwifery Profession Act, Nu. 2008 c. 2008 (s. 6.1).

Challenges to Regulation

Regulating a traditional Aboriginal healing may be challenging both constitutionally and within the regulatory regime. First, it is not a given that traditional Aboriginal healing may be regulated by Canadian law without raising constitutional issues.  A case such as Hamilton Health Sciences v. DH, 2015 ONCJ 229 Canlii and 2014, ONCJ 603 Canlii, where the court determined that a child, D.H., who was suffering from acute lymphatic leukemia had an aboriginal right to pursue treatment by traditional aboriginal medicine, creates legal uncertainty as to whether Canadian laws regulating traditional Aboriginal healing could withstand the scrutiny of a constitutional challenge.  Second, the Western practices of codifying knowledge and setting standards, directing investigation and disciplinary measures may not easily mesh with Aboriginal practices of how practitioners are trained or selected, traditional knowledge is communicated, or restorative justice is meted out.  However, if health professional regulators are to take the integration of traditional Aboriginal healing seriously, then these are some of the important issues with which regulators must grapple.

To read more, please click here for our CLEBC paper.