November 23, 2022


Extraordinary action under the HPOA, now known as “summary protection orders”, has clarified many of the issues that plagued the existing HPA provision. In our view, the HPOA’s design of summary protection orders is more transparent, provides mechanisms that allow colleges to respond to urgent circumstances, and increases efficiency.

The test for a summary protection order: Under the current HPA, s. 35(1) provides that an inquiry committee may take action “If the inquiry committee considers the action necessary to protect the public”, and it may order limits or conditions, or suspend the registration of a registrant. This wording resulted in much dispute over whether the inquiry committee had to conduct a mini-trial as to whether misconduct occurred, or merely had to find a prima facie case.

The HPOA replaces the current HPA wording with a more specific requirement for “reasonable grounds to believe that (a) a respondent’s practice of a designated profession or occupation may present a significant risk of harm to any person… (HPOA s. 259).

With a nod to anti-vaccine statements by some health professionals during the COVID-19 pandemic, the HPOA extends summary protection orders to where “a respondent is providing false or misleading information to patients or the public” and that either “a person who acts on the information is at significant risk of harm”, or “providing the information is an activity that is a health hazard within the meaning of the Public Health Act.” (HPOA s. 259). (A “health hazard” under that statute includes an activity that endangers, or is likely to endanger, public health, or that interferes, or is likely to interfere, with the suppression of infectious agents or hazardous agents.)

Who may authorize an order: An inquiry committee may direct, vary, or cancel a summary protection order. A registrar may make a summary protection order only on the direction of the investigation committee (HPOA s. 153). But where a complaint not yet before an inquiry committee, the HPOA clarifies a registrar may request direction from the committee — or a single member of the committee in some circumstances — to make a summary protection order (HPOA s. 122(1)).

What an inquiry committee may order: The HPOA, like existing HPA s. 35(1), provides that the inquiry committee may impose limits or conditions, or suspend practice authority. The HPOA requires that the board make bylaws setting out “the circumstances” in which orders may be made, and the limits or conditions that may be imposed under a summary protection order. The bylaws may therefore warn licensees, educate the public, and provide more certainty about the circumstances that involve a risk of significant harm (HPOA s. 118(d) and (e)).

Procedural fairness: HPOA ss. 260 and 261 provide that an order may be made without notice or an opportunity to be heard. However, respondents have a right to apply for reconsideration. This makes explicit a common practice under HPA s. 35, where extraordinary action is taken without notice, but with advice that registrants may apply for reconsideration under s. 35(4).

Publication: The HPOA requires that a registrar publish a copy of each summary protection order (HPOA s. 256). The HPOA also requires that a registrar give written notice of such an order to a person who employs the respondent to provide health services (HPOA s. 253(2)), and to a complainant (HPOA s. 245(2)). The HPOA broadens the publication currently required under HPA ss. 35 and s. 39.3.

When summary protection orders end: Where an inquiry committee concludes it does not have reasonable grounds to believe a respondent lacks competence or has committed an act of misconduct, the registrar must make an order that rescinds any summary protection order (HPOA s. 136(4)). If an inquiry committee asks for a citation, but the director of discipline refuses to issue a citation, any order made in the course of the investigation cases to apply (HPOA s. 168(1)(a)). Otherwise, a summary protection may persist through to the end of a discipline hearing, but subject to variation based on new evidence (HPOA s. 152(2)). This fixes the current expiry of extraordinary action under the HPA once a discipline hearing begins.

Lisa C. Fong, KC and Michael Ng