March/April 2001 Table of Contents
In this Article
Who is a private practitioner?
Sources of legal and ethical guidance for private practitioners
What should I know about the business side of practice?
By Jasmine Ghosn
There are many potential legal and ethical issues which can arise for health professionals in private practice. This article will briefly discuss the following:
- sources of legal and ethical guidance for private practitioners,
- business aspects of a private practice, and
- conflict of interest issues.
Who is a private practitioner?
The Private Practice Guidelines for Occupational Therapists in Manitoba
defines a private practitioner as one who typically operates outside of
the traditional provincial health insurance scheme and one who is self-employed
on a fee-for-service, a contract-for-service, or a retainer basis (MSOT,
1996). Section 1 of the Guidelines for Private Practice in Speech-Language
Pathology and Audiology in Alberta defines a private practitioner
as one who singly or in affiliation with others:
a. has total ethical, professional, and administrative control of the practice as to the details of when, where, and how the work is done,
b. has total financial and legal responsibility and liability for the practice,
c. furnishes or arranges for the tools, materials, equipment, and facilities used in performing services, and
d. receives fees for services from individuals, agencies, insurers, etc. which are not in the form of a wage or salary (Speech-language and Hearing Association of Alberta (SLHAA), 1992).
Sources of legal and ethical
guidance for private practitioners
Legislative safeguards which are in place for publicly-regulated, health
care facilities generally do not apply to private health professionals.
Private practitioners must look to provincial legislation which applies
to all health professionals. This may include legislation governing health
records, health information, and consent to treatment. Private practitioners
must also look to statutes and regulations governing the profession and
standards of practice, codes of ethics, and guidelines adopted by their
provincial regulatory body.
Private practitioners should also be cognizant of legislation governing the sector in which the practitioner practises; for example, insurance, workers' compensation, and public health legislation. The Private Practice Guidelines for Occupational Therapists in Manitoba (1996) include a recommendation that occupational therapists seek legal advice to ensure their practices are in accordance with provincial legislation, such as The Privacy Act, The Mental Health Act, The Public Health Act, and The Insurance Act.
When legislation is not available to address certain issues, guidance may be available through the common law or judge-made law. There are, however, very few court cases where private rehabilitation professionals are involved. Further, "legal cases" involving rehabilitation professionals, are usually dealt with by way of complaints or inquiries to the regulatory bodies rather than through the courts. These complaints are often settled without the need for a public hearing and very few written decisions are available to the public.
Generally, it is the regulatory bodies which are in the most effective position to provide "legal" guidance to private practitioners because they have been empowered by the legislature to establish the standards for the profession. There are opposing views, however, as to whether regulatory bodies should establish "special" guidelines or standards of practice for private practitioners. Some argue that it is not practical or wise to establish a "recipe" for each of the circumstances that a person may practise his or her profession and that the only standards that should be established are those which are generic in nature and which apply to all members of the profession. Where no guidance is available through a rule of law or through the governing regulatory body on a particular issue, practitioners must rely upon ethical decision making and professional judgement. It is recognized, however, that private practitioners often face legal and ethical issues which are too complex for them to resolve on their own.
Some regulatory bodies governing the professions of occupational therapy, physiotherapy, speech language pathology and audiology have established guidance to private practitioners through regulations, standards of practice, codes of ethics, position statements or guidelines. It must be borne in mind, however, that what may be applicable to one member of the profession in one jurisdiction does not necessarily apply to members of the profession in another jurisdiction. Having said that, there is some value in considering what has been established by the various regulatory bodies.
What should I know about the
business side of practice?
It is recommended in the Guidelines for Private Practice in Speech-Language
Pathology and Audiology in Alberta that a chartered accountant be
retained at the initiation of a practice to ensure that principles of
good business practice are established (SLHAA, 1992). In Ontario, the
Professional Misconduct Regulation made under the Regulated Health Professions
Act, 1991 states that a finding of professional misconduct may result
if a therapist engages in certain business practices such as: submitting
a false or misleading account for services rendered; charging an excessive
fee in relation to the services rendered; offering to give a reduction
in fees for prompt payment of an account; or selling or assigning any
debt owed to the therapist (1991).
Regulatory bodies may be empowered to prescribe the types of names and business names by which sole proprietors, professional corporations and partnerships with health professionals may be known; for example, see section 6(2)(x) of the Occupational Therapists Act of Nova Scotia: S.N.S. 1998, c. 21. Also, some regulatory bodies may prescribe the minimum amount of liability protection that members are required to obtain; for example, see section 14(2)(o) of The Occupational Therapists Act, 1997 in Saskatchewan: S.S. 1997, c. 1.11. In some cases, approval from the regulatory body is required before a practitioner may advertise; for example, see section 7(1) of the Occupational Therapists Regulation: Man. Reg. 49/86, made under The Occupational Therapists Act of Manitoba: R.S.M. 1987, c. 5. Regulations or guidelines may also address issues relating to staffing, physical facilities, equipment, client scheduling, polices and procedures, personnel policies, resources, client care and administration, fire, safety, hygiene, professional conduct, treatment protocols, continuing education, and quality management; for example, see Guidelines for Conducting a Clinical Physiotherapy Practice (College of Physiotherapists of Ontario, 1998).
Generally, any employer who employs health professionals to assist in a practice must ensure that the employees are duly registered under the governing act. Also, an employer may be required to report to the regulatory body when an employee is terminated for professional misconduct, incompetence or incapacity; for example, see section 58 of the Occupational Therapy Profession Act of Alberta: S.A. 1987, c. O-2.5).
What about conflicts of interest?
Private practitioners are more likely to encounter conflict of interest
situations than those practitioners who work in publicly-regulated, health
care facilities. Most regulatory bodies are given the power to prescribe
what constitutes a conflict of interest in the practice of the profession,
and to regulate or prohibit the practice of the profession in cases where
there is a conflict of interest. In Ontario, for example, it is a conflict
of interest for occupational therapists to "exploit any relationship
established as a therapist to further their own physical, psychological,
emotional, financial, political, or business interests at the expense
of the best interest of the client" (College of Occupational Therapists
of Ontario, 1996).
The College of Audiologists and Speech Language Pathologists of Ontario (1996) has very detailed guidelines regarding conflicts of interest in the form of draft regulations. Under section 4 of these draft regulations, a conflict of interest may exist when the practitioner's personal or financial considerations compromise professional judgement or where it appears that the practitioner's professional judgement has the potential of being compromised. Under section 5, circumstances in which conflicts may arise include those when a practitioner receives a benefit, or could potentially receive a benefit, from a manufacturer, dealer or vendor of professionally related products which may be used by patients or clients in consideration for the member promoting the sale of the products. Under section 7, a conflict may also arise when a practitioner independently provides a service to a patient or client of the practitioner's employer, or refers a client to a clinic or facility in which the practitioner has an interest.
The Private Practice Guidelines for Occupational Therapists in Manitoba (1996) describe several situations which could lead to a conflict of interest, including soliciting clients for private practice from the member's employer; using the resources of the member's employer for purposes not agreed to; securing or accepting significant financial or material benefit for activities which are already awarded by salary or other compensation; and prejudicing others against a colleague for reasons of personal gain.
While some regulatory bodies require that practitioners not practise in a conflict of interest situation, some permit members to engage in certain activities if certain conditions are met, namely that the patient or client is informed as early as possible of the conflict or potential conflict, the patient or client is provided with alternative options for services or products that are prescribed, and the patient or client then expresses a preference for the service or product in question. For an example, see Draft Regulation for Conflict of Interest (College of Audiologists and Speech Language Pathologists of Ontario, 1996). For a detailed review of conflicts of interest in health care, see Conflicts of Interest in Canadian Health Care Law (Dickens, 1995).
Summary
While various regulatory bodies governing health professions in Canada
have taken steps to address some of the legal and ethical issues which
can arise in private practice, it is ultimately the private practitioner's
responsibility to practise in a legal and ethical manner. As there is
very little guidance available through legislation, case law and the regulatory
bodies, private practitioners must accept the challenge of both identifying
and addressing these issues in their day-to-day practice.
College of Audiologists and Speech Language Pathologists of Ontario. (May, 1996). Draft Regulation for Conflict of Interest. Toronto, Ontario: Author.
College of Occupational Therapists of Ontario. (November, 1996). Code of Ethics. Toronto, Ontario: Author.
College of Physiotherapists of Ontario. (September, 1998). Guidelines for Conducting a Clinical Physiotherapy Practice. Toronto, Ontario: Author.
Dickens, B.M. (1995). Conflicts of Interest in Canadian Health Care Law: 21. American Journal of Law and Medicine, 2 & 3, 259.
Manitoba Society of Occupational Therapists (MSOT). (1996). Private Practice Guidelines for Occupational Therapists in Manitoba. Winnipeg, Manitoba: Author.
Occupational Therapy Profession Act, S.A. 1987, c. O-2.5.
Occupational Therapists Act, S.N.S. 1998, c. 21.
Occupational Therapists Regulation, Man. Reg. 49/86, made under The Occupational Therapists Act, R.S.M. 1987, c. 5.
Physiotherapy Profession Act, S.A. 1984, c. P-7.5.
Professional Misconduct Regulation, O. Reg. 800/93, made under the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
Speech Language and Hearing Association of Alberta. (Spring, 1992). Guidelines for Private Practice in Speech-Language Pathology and Audiology in Alberta. Edmonton, Alta: Author.
The Occupational Therapists Act, 1997, S.S. 1997, c. O-1.11.
Jasmine Ghosn, B.Sc. (Occupational Therapy), LLB is a former occupational therapist who now practises health law and personal injury litigation with the law firm Borden Ladner Gervais, LLP in Toronto. Jasmine was a teaching assistant at the Health Law Institute at Dalhousie University for the course Health Law and Policy in Occupational Therapy. This article is based on Jasmine's presentation at the Tri-Joint Congress 2000, Legal Issues in Private Practice.
March/April 2001 Table of Contents
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