Regulated, But Not Protected: The Legal Gaps in Mental Health Support for Ontario’s Healthcare Workers
Why Ontario’s Healthcare Laws Fail Its Professionals
More than one in five Canadians experience mental health issues in any year[1], with half of Canadians experiencing these issues by the time they are 40.[2] Mental health issues relating to members of the public garner most of the attention.[3] There has been far less focus on members[4] of health professions who experience these same concerns. This is astounding given that a healthcare system is only as healthy as its healthcare professionals. A system that does not ensure the health of its healthcare providers is ill and lost. This paper aims to review the legal framework governing the mental health of regulated health professionals in Ontario while working in their respective professions and how such a legal framework has failed health professionals and the public who rely on them.
Healthcare in Ontario is complex and governed by many provincial and federal laws, including profession-specific laws, privacy laws, laws regulating hospitals and clinics, the Human Rights Code, the Canadian Constitution and the Charter of Rights and Freedoms. Canada is also a signatory to several conventions affecting healthcare, including the United Nations Convention on the Rights of Persons with Disabilities. Some of these laws convey privilege, while others touch on fundamental human rights.
It is trite to say, but a necessary starting point to state laws, common law, and conventions does not give people fundamental rights. Rather, they merely acknowledge the rights that all people have. Fundamental human rights are inalienable and universal. Laws that attempt to address historical wrongs must begin with an acknowledgement that some wrongs flow from the incorrect idea that people have different fundamental rights.
Repatriation of the Constitution, Entrenchment of the Charter: Time to Modernize Health Professional Regulation in Ontario
Canada came of age in 1982 with the repatriation of the Constitution. By this time the Ontario government recognized its current legal framework for healthcare required updating. It studied the need for a new health act to govern healthcare professionals, one which reflected the changing healthcare landscape that followed the Charter.
The result was the Regulated Health Professions Act, 1991 (“RHPA”). By the time it became law in 1991, the RHPA governed the acts of about 220,000 regulated health professionals in 23 professions in Ontario.[5] Ten years later, the Chair of the Health Professions Regulatory Advisory Council, Mr. Rob Alder wrote, “when the RHPA was passed in 1991, it represented a shift from profession-centered regulation to public interest regulation.”[6] This statement, meant to be positive, may have inadvertently foretold massive problems to come.
The RHPA was seen as revolutionary and ahead of its time[7]. Over 30 years later, this law continues to govern the conduct of 400,000 healthcare professionals in 29 health professions.[8] But the law is anachronistic, contrary to the supreme law of Canada (the Canadian Constitution and Charter) and international Convention obligations. The RHPA is unresponsive to the changing needs of health professionals in Ontario. The law fails to…
For a copy of the complete text, please email jonah@healthlawfirm.ca.
Sources:
[1] Smetanin et al. (2011). The life and economic impact of major mental illnesses in Canada: 2011-2041. Prepared for the Mental Health Commission of Canada. Toronto: RiskAnalytica, accessed via CAMH at https://www.camh.ca/en/driving-change/the-crisis-is-real/mental-health-statistics
[2] Ibid.
[3] I do not suggest the time and effort spent addressing mental health issues and the public have been adequate. More resources should be allocated to these issues. More training of healthcare professionals and improved access to treatment for vulnerable people would help.
[4] Regulated Health Professions Act, 1991, S.O. 1991, c. 18., s. 1(1). A member is a member of a College of a health profession, used interchangeably in this paper with healthcare professional or health professional.
[5] Adjusting the Balance: A Review of The Regulated Health Professions Act. Report To the Minister of Health And Long-Term Care. Health Professions Regulatory Advisory Council, March 2001. https://www.hprac.org/en/reports/resources/rhpa_review_2001_report.pdf
[6] Ibid., foreword.
[7] Ibid., at page 1.
[8] Health Profession Regulators of Ontario, https://www.regulatedhealthprofessions.on.ca.