Professional Regulation in the Age of Technology: Issues to Consider

Technology is constantly evolving, and new innovations in healthcare have the potential to bring greater access and services to more individuals. The rate at which technology develops, however, often outpaces the ability of regulators to provide timely guidance. As regulated health professionals gain access to new disruptive technologies and practices, what are their legal obligations with respect to using these technologies?

Why and how are new technologies regulated at Health Colleges?

As a general proposition, technological innovation is a positive force that can address shortcomings and/or service gaps in existing models. In the context of healthcare, innovation, including the use of artificial intelligence and algorithms, can result in improved quality of life and patient outcomes. However, new technologies also introduce new risks and issues. For example, patient privacy and confidentiality are affected by the increased reliance of the public and the professions on the internet and other electronic channels. Practitioners operating across borders also must consider whether they are practicing within their appropriate jurisdiction.

Because the full implications of healthcare innovations are unforeseeable, the regulated health professions are required to balance innovation with the protection of the public.

Who is responsible when a regulated health professional uses disruptive technologies?

  1. Regulated Health Colleges

Ideally, each Health College should work towards achieving this balance between innovation and protection of the public by providing practitioners with timely guidance and education on the appropriate uses of disruptive technologies. Section 3(1), paragraph 10, of the Health Professions Procedural Code (“HPPC”), which is Schedule 2 to the Regulated Health Professions Act (“RHPA”), states that one of the objects of each Health College is “to develop, establish, and maintain standards and programs to promote the ability of members to respond to changes in practice environments, advances in technology and other emerging issues.”

In its official statement on “eHealth”,[1] the College of Physicians and Surgeons of Ontario states that one of its roles as the regulator of physicians is to “promote physician eHealth literacy, and encourage the effective and appropriate use of technology by physicians to provide safe, quality care to their patients.” The statement also indicates that the regulator is responsible for “incorporat[ing] eHealth expectations into existing policies and/or develop[ing] new policies as the need arises.” While this statement does not explicitly pertain to disruptive technologies, it provides helpful guidance as to the kind of approach that should be implemented and codified at each Health College.

Currently, there is minimal case law and legislation addressing disruptive technologies in a substantive manner.[2] As each situation created by a new technology is unique, one general, overarching policy or law would likely not be sufficient to cover all disruptive technologies. Despite the language contained in section 3(1) of the HPPC, it is time-consuming for Health Colleges to create and approve guidelines and policies for each new technology.

  1. Regulated Health Professionals

Accordingly, health professionals should be aware that there may be lengthy periods of time during which their Colleges may not have defined the appropriate uses of certain new technologies. This has the potential to create barriers to implementing such technologies into professional practice. Practitioners may find it difficult to act proactively in accordance with best practices when the Colleges have not yet established those practices. This concern with not being compliant may discourage some health professionals from adopting innovations that could potentially benefit patients.

Regulated health professionals are ultimately responsible for their own actions while practicing, and must always comply with the requirements of the RHPA, HPPC, and standards and policies of their Colleges. Where there may be gaps in College policies, implementing certain technologies and practices may expose health professionals to potential regulatory consequences.

It may be prudent for regulated health professionals to exercise caution when faced with ambiguity pertaining to legislation and/or policy, as it is unclear how each Health College will address each new situation. Ideally, the Colleges will approach new technologies, practices, and situations as they emerge by continuing to develop and review guidelines and policies in a timely manner. Prioritizing proactive education and guidance of regulated health professionals, rather than imposing widespread retroactive judgments, may assist in encouraging and enabling continued innovation in healthcare. The level of permissiveness that will be allotted to practitioners who are operating outside of strictly regulated areas, however, remains unclear.

Even established technologies may still lack fulsome College guidelines regarding appropriate uses. For example, social media is now widely used by practitioners to promote their businesses. However, many Health Colleges might not have comprehensive policies and guidelines identifying the appropriate uses of social media and its business-related functions, such as digital advertising.

Dentists, nurses, pharmacists, massage therapists, optometrists, and physicians are a few examples of regulated health professionals who are prohibited by legislation and/or the practice standards of their respective Colleges from using testimonials to advertise their services. These same pieces of legislation and practice standards, however, generally do not define the term “testimonial”. This has left practitioners without significant guidance.

Case law indicates that the there is a precedent for including before-and-after photographs of patients under the definition of “testimonial”.[3] This interpretation of “testimonial” has important implications for regulated health professionals. The use of before-and-after photographs may be common in the marketing of healthcare services that have the potential to result in some kind of visually perceivable physical change, such as weight-loss services, aesthetic medicine services, and cosmetic dental procedures. The case law demonstrates that practitioners whose advertising has included before-and-after photographs have faced professional consequences from their Colleges.

Despite the known use of such advertising methods in the regulated health professions, and the concurrent possibility that such practices may be considered violations of practice standards, Health Colleges generally have not disseminated such information to their members. This makes it more difficult for practitioners to remain aware of all of the pertinent laws and guidelines of their professions. Where regulators interpret legislation in a manner that can negatively affect practitioners who use certain technologies, it will be ideal for those regulators to provide greater and more accessible education regarding professional expectations and appropriate uses. Until that time, it will be prudent for regulated health practitioners to exercise vigilance when implementing newer technologies and practices.

It is possible that more general policies and standards will provide regulated health professionals with some guidance on how to proceed with the use of a new technology. For example, consulting patients remotely through telecommunications, if appropriate, requires practitioners to ensure that they continue to follow all of the relevant standards of their Colleges that are engaged by the use of telecommunications. Important considerations include taking all necessary steps to perform appropriate assessments, and maintaining patient privacy and confidentiality.

  1. Non-Regulated Stakeholders

In general, the professional rules of a Health College only apply to the professionals who are regulated by that Health College. Non-regulated stakeholders, such as manufacturers, may introduce technologies that have the potential to disrupt accepted methods of practice in a profession. Use of these disruptive technologies might expose regulated health professionals to potential consequences at their Health Colleges. Despite potentially inducing regulated health professionals to contravene their codes of ethics, policies, and/or standards, the non-regulated stakeholders that create disruptive situations typically will not share the same kind of legal consequences before a Health College as a regulated health professional who implements the technology into their practice.

Expanding upon the earlier example of a regulated health professional who uses before-and-after photographs to advertise their services, this professional may promote their practice on social media sites.  For example when social media sites allow individuals, including patients, to leave comments and ratings, there is a risk that professionals may respond in a manner that could violate professional regulations prohibiting the use of testimonials and/or the dissemination of personal health information. Despite this concern, to date regulators have primarily focused their attention on the professionals who may decide to post comments, and not on the social media sites that may be facilitating the concerning conduct. This is because regulators likely would not have any specific jurisdiction over third parties such as social media sites.

Ideally, Health Colleges and their members should work together to ensure that any situations involving non-regulated stakeholders accord with the governing legislation and policies. The aforementioned statement on eHealth identified that one of the roles of the regulator is to “monitor the environment […] and work collaboratively with stakeholders to ensure that proposed technology both complies with professional and clinical standards and allows the College to regulate the profession effectively”.[4]

The statement on eHealth also suggests that the adoption and use of new technologies is not the exclusive responsibility of regulated health professionals. Healthcare system partners are responsible for complying with existing professional standards, regulations, and legislation. This places an onus on non-regulated stakeholders to engage directly with Health Colleges. By doing so, this will ideally assist Health Colleges in fulfilling their regulatory duties to protect the public interest.

It is unclear how Health Colleges will ensure that non-regulated stakeholders comply with professional standards, regulations, and legislation. Regardless of how Health Colleges choose to address non-regulated stakeholders, every regulated health professional is required to act and practice in a manner that maintains the dignity and integrity of their profession.

Conclusion

It is always incumbent on all regulated health professionals to practice in accordance with the standards of their professions. Regulators expect regulated health professionals to take proactive steps to determine the proper uses of technologies. It is prudent for regulated health professionals to identify any legislation, policies, guidelines, and Codes of Ethics that may affect their ability to use a novel technology that they are considering for their practice.

[1] “eHealth”, online: College of Physicians and Surgeons of Ontario <https://www.cpso.on.ca/Physicians/Policies-Guidance/Statements-Positions/eHealth>.

[2] There is one notable exception in the case of College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265 (“Essilor”). Essilor addressed jurisdictional issues pertaining to the disruptive technology of interprovincial online sales, including what kind of conduct constitutes the controlled act of “dispensing”.

[3] S.K.B. v S.S., 2013 CanLII 81938 (ON HPARB); S.K.B. v L.M.B., 2014 CanLII 71028 (ON HPARB); P.R. v S.K.B., 2015 CanLII 7864 (ON HPARB); and L.M.K v M.F., 2015 CanLII 70208 (ON HPARB).

[4] “eHealth”, online: College of Physicians and Surgeons of Ontario <https://www.cpso.on.ca/Physicians/Policies-Guidance/Statements-Positions/eHealth>.

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