December 2, 2022

The HPOA: Health Profession Corporations

The new Health Professions and Occupations Act (the “HPOA”) was recently passed in BC, receiving Royal Assent on November 24, 2022. A link to the Third Reading version of the HPOA is available here.

Amongst its many provisions, the HPOA continues provisions relating to health profession corporations under the Health Professions Act, RSBC 1996, c. 183 (”HPA”). Indeed, many provisions in the HPA have direct equivalents under the new HPOA.

The HPOA does, however, contain some new elements.

First, the HPOA adds to the HPA’s permit structure by expressly providing for hearings, both at the permit application stage (HPOA ss. 61-63), and at the disciplinary action stage (HPOA ss. 113-116).

Second, the HPOA also transfers responsibility over health profession corporation permits from the board to the “permit committee”.

Third, the HPOA provides for collaboration agreements between colleges relating to health profession corporation permits (HPOA s. 60).

Fourth, and in contrast to the grounds for action against a health professions corporation under HPA s. 44(1)(a) to (c) — including an act that if done by a licensee would be considered an act of misconduct — the HPOA provides for a fourth basis of action: “(d) the health profession corporation is being managed or operated in a manner that, in the opinion of the committee, presents an unreasonable risk of harm to the public” (HPOA s. 113(d)).

The HPOA notably provides that a permit committee may take disciplinary action against health profession corporations, after a hearing (HPOA ss. 113, 114 and 115). While this is also the situation under the HPA (s. 44), the fact that this jurisdiction will continue separate from the powers of a discipline panel raises interesting questions, such as how permit committees ought to address a misconduct matter also before a discipline committee. For example, if a licensee working for a corporation is before a discipline panel, should a permit committee wait before addressing the corporation’s permit? Or does the HPOA contemplate concurrent proceedings, even if they may result in consistent outcomes?

The current HPA and the new HPOA still do not, however, address the increasing control of non-registrants over practices, such as where large businesses have come to provide branded health profession services as part of their offerings. While such businesses arrange for professionals to provide services, ostensibly in return for a “turn-key” operations handled by others — complete with clients and non-professional employees — the businesses consequently control the brick-and-mortar and administrative aspects of such professional practices. This control by non-professionals may extend to physical space; control over equipment or suppliers; control over administrative activities, such as billing and fees; control over how service must be provided, e.g., within certain hours, or virtually instead of in-person; the content of advertising to the public; and control over patient records.

While the HPOA limits who may hold shares in health profession corporations, it does not prohibit or regulate licensees or health profession corporations from entering into “service” arrangements that may result in significant tensions, if not conflicts, between, on the one hand, professional standards, and on the other hand, operational rules and activities that are shaped by business owners or managers who only serve business interests, and who are not regulated by colleges.

Lisa C. Fong, KC and Michael Ng