Bill 861 — Dental Act, 2008 (46th General Assembly, 1st Session)
Bill 861
Newfoundland and Labrador — Bills
First
Session, 46th General Assembly
Elizabeth II, 2008
BILL 61
AN ACT RESPECTING THE
PRACTICE OF
DENTISTRY
Received and Read the First Time ...................................................................................................
Second Reading .................................................................................................................................
Committee ............................................................................................................................................
Third Reading .....................................................................................................................................
Royal Assent ......................................................................................................................................
HONOURABLE
ROSS
WISEMAN
Minister of Health and Community Services
Ordered
to be printed by the Honourable House of Assembly
EXPLANATORY NOTE
This Bill would revise the law
respecting the practice of dentistry.
A BILL
AN ACT RESPECTING THE PRACTICE OF
DENTISTRY
Analysis
Short title
Definitions
Dental association
Objects
Dental board
Chairperson and registrar
Quorum and meetings of the board
Annual meeting and report
Duties of registrar and the register
By-laws
Regulations
Regulations re: dental auxiliaries
Licence
Conditional licence
Fees and forms
Annual remittance
Amount of fees
Definitions
Professional corporation
Corporate register
Annual licence
Revocation of licence
Effect of incorporation
Liability of dentist
Misconduct of a professional dental
corporation
Definitions
Committees
Allegation
Effect of filing allegation
Complaints authorization committee
Adjudication tribunal
Hearing
Copies of books, etc. as evidence
Guilty plea by respondent
Powers of adjudication tribunal
Filing and publication of decisions
De-registration and suspension
Failure to comply
Reinstatement and readmission
Costs of the board
Collection of fine
Appeal
Application of sections to professional
corporation
Evidence of registration
Inspection
Offences and penalties
Protection from liability
Transitional
RSNL1990 c D-6 Rep.
Commencement
Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Dental Act, 2008.
Definitions
2. In
this Act
(a) "association" means the Newfoundland and
Labrador Dental Association referred to in
section 3 ;
(b) "board" means the Newfoundland and
Labrador Dental Board continued under
section 5 ;
(c) "dental auxiliary" means a dental
auxiliary as defined in the regulations;
(d) "dentistry" means professional
service usually performed by a dentist and includes
(
i) the diagnosis or treatment of, and the
prescribing, treating or operating for, the prevention, alleviation or correction
of disease, pain, deficiency, deformity, defect, lesion, disorder or physical
condition of, in or from a human tooth, associated structure or tissue or an
injury to a human tooth, associated structure or tissue,
(ii) the making, producing, reproducing,
constructing, fitting, furnishing, supplying, altering or repairing of or
prescribing or advising the use of a prosthetic denture, bridge, appliance or
thing for the purposes referred to in subparagraph (i), or to replace, improve
or supplement a human tooth, or to prevent, alleviate, correct or improve a
condition upon or in connection with a human tooth, associated structure or
tissue, or in the treatment of a condition of a human tooth, associated
structure or tissue, and
(iii) the taking or making, or the giving of advice or
assistance or the providing of facilities for the taking or making, of an
impression, bite, cast or design preparatory to, or for the purpose of or with
a view to making, producing, reproducing, constructing, fitting, furnishing, supplying,
altering or repairing of a prosthetic denture, bridge, appliance or thing;
(e) "licence" means a licence to
practise dentistry issued and in force under this Act and includes a conditional
licence and a licence issued to a dental auxiliary;
(f) "minister" means the minister
appointed under the Executive Council Act
to administer this Act;
(g) "practice of dentistry" includes a
single act referred to in paragraph (d);
(h) "practitioner" means a dentist
licensed to practise under this Act;
(i) "professional dental corporation"
means a corporation that is permitted under this Act to provide the services of
a dentist;
(j) "register" means the register
referred to in subsection 9 (1); and
(k) "registrar" means the registrar
appointed under
section 6 .
Dental association
(1) The
Newfoundland Dental Association is continued as a corporation under the name of
the Newfoundland and Labrador Dental Association without share capital for the
purposes of
Part XXI of the Corporations
Act .
(2) Notwithstanding its continuation as a
corporation under this Act, the Corporations
Act applies to the association and it shall be governed by that Act for all
purposes, including a change of name of the association.
(3) All persons who
(
a) are holders of a licence; and
(
b) pay the fee for membership,
are, notwithstanding anything contained in
the by-laws, members of the association.
(4) The association may, in accordance with the
by-laws appoint persons as associate members, student members, life members and
to other types of membership in the association.
Objects
4. The
objects of the association are
(
a) to promote and advance dentistry and related
arts and sciences in all their branches, to increase the knowledge, skill,
standard and proficiency of its members in the practice of dentistry, and to
maintain the honour and integrity of the dental profession;
(
b) to act to improve dental health and prevent dental
disease and disability;
(
c) to co-operate with and to assist the
government of the province, public and private dental associations, agencies
and commissions engaged in the task of providing or financing dental care;
(
d) to promote measures designed to improve
standards of dental care and the practice of dentistry; and
(
e) to improve the welfare and social standards of
its members and encourage the co-operation of its members in the protection of
their rights.
Dental board
(1) The
Newfoundland Dental Board is continued as a corporation under the name of the
Newfoundland and Labrador Dental Board without share capital for the purposes
Part XXI of the Corporations Act.
(2) The board shall consist of
(a) 5 dentists registered and licensed under this
Act, nominated and elected in accordance with the by-laws;
(
b) one person appointed by the minister to
represent each of the dental auxiliary groups normally defined by the board in
regulations made under
section 12 ; and
(c) 2 other persons appointed by the minister to
represent the general public.
(3) A person who is a member of the governing body
of the association is not eligible to be elected as a member of the board under
paragraph (2)(a).
(4) A member of the board holds office for a term
of 3 years or until his or her successor is elected or appointed.
(5) A member of the board is eligible for
reappointment or re-election but a member shall not serve on the board for a
continuous period exceeding 9 years.
(6) Where a vacancy occurs in the membership of
the board as a result of the death, retirement, resignation or incapacity to
act of a member, the vacancy shall be filled
(
a) in the case of an elected member, by an
election in accordance with the by-laws; and
(
b) in the case of another member, by appointment
under paragraph (1)(
b) or (c).
(7) When a vacancy is filled under subsection (6),
the person filling the vacancy shall serve only for the remainder of the term
of office of the member being replaced, and that person is eligible for re-election
or reappointment.
(8) Where the term of office of a member of the board
expires and a successor has not been elected or appointed, the member may
continue to hold office until a successor is elected or appointed but time
served by that member under this subsection shall not be counted for the purpose
of subsection (5).
(9) The members of the board shall serve without
remuneration but shall receive travelling and other expenses in accordance with
guidelines established by the Lieutenant-Governor in Council.
Chairperson and
registrar
(1) The
board shall
(
a) elect from among the members nominated and
elected under paragraph 5 (2)(
a) a person to be
the chairperson and one to be the vice-chairperson of the board; and
(
b) appoint a person, who may or may not be registered
and licensed to practise dentistry within the province and who may or may not
be a member of the board, as the registrar.
(2) The chairperson shall preside at meetings of
the board and in his or her absence the vice-chairperson shall preside.
(3) The registrar is by virtue of his or her office
a member of the board without the right to vote where the registrar is
appointed from outside the board and in that case the registrar is not subject
to subsection 5 (4) or (5).
Quorum and meetings
of the board
(1) Five
members of the board, a majority of whom shall be members referred to in
paragraph 5 (2)(
a) and at least one of whom
shall be a member referred to in paragraph 5 (2)(
b) and one of whom shall be a member referred to in paragraph 5 (2)(
c) constitute a quorum for a meeting of the board.
(2) At meetings of the board, each member of the board
shall have one vote and in the case of a tie, the chairperson or, in the
absence of the chairperson, the vice-chairperson shall have a second or casting
vote.
(3) Except where prohibited in the by-laws, a
member of the board may, where all the members of the board consent,
participate in a meeting of the board by means of the telephone or other
telecommunication device that permits all persons participating in the meeting
to communicate with each other.
Annual meeting
and report
(1) The
board shall hold an annual general meeting in accordance with the by-laws which
all registered and licensed dentists and licensed dental auxiliaries are
entitled to attend.
(2) At its annual general meeting the board shall
(
a) appoint an auditor to audit the accounts of
the board and to report on the financial statements of the board; and
(
b) consider and vote on those other matters
required by the by-laws.
(3) The board shall prepare and submit to the
minister before July 1 each year
(
a) a report on its activities; and
(
b) its audited financial statements.
(4) The minister shall present a copy of the
annual report and the audited financial statement in the House of Assembly
within 15 days of receiving it if the House is sitting and if the House is not
sitting within 15 days after it next begins to sit.
(5) Where the board fails to comply with subsection
(3), it is guilty of an offence and liable upon
summary conviction to a fine of
$1,000.
Duties of
registrar and the register
(1) The
registrar is the secretary of the board and shall
(
a) keep a record of the proceedings of the board;
and
(
b) maintain a register in which shall be entered
the names of all those persons qualified and licensed to practise dentistry in
the province.
(2) The register shall, without charge, be open
and subject to inspection at all reasonable times by a person.
By-laws
(1) The
board may make by-laws
(
a) providing for the holding and procedure of its
meetings;
(
b) providing for the election of members of the board
under paragraph 5 (2)(
a) including the term of
office of the chairperson and vice-chairperson;
(
c) respecting the participation of members of the
board in a meeting of the board by telephone or other telecommunications device
under subsection 7 (3);
(
d) respecting the maintenance of the register and
the form and contents of it;
(
e) respecting the remuneration, and allowances
payable to members of the board for attending meetings and for carrying out the
functions of the board under this Act, with power to prescribe different rates
for different members and different functions;
(
f) respecting the appointment, termination and
duties of employees of the board;
(
g) respecting the remuneration and payment of
travel expenses of members of adjudication tribunals;
(
h) establishing a code of ethics which shall
include a definition of "professional misconduct" and "conduct
unbecoming a practitioner" for the purposes of sections 26 to 42 ;
(
i) establishing standards governing the practice
of dentistry, including standards of professional competence and of capacity
and fitness to practise;
(
j) establishing rules respecting methods of
advertising;
(
k) providing for voting at meetings of the board;
and
(
l) generally, to give effect to its powers under this
Act and the regulations.
(2) A by-law may be made, amended or repealed at a
meeting of the board if 30 days notice, or the shorter period to which members
of the board may consent, is given of the intention to make, amend or repeal a
by-law, and of the meeting, to the members of the board.
(3) The board shall have the by-laws available for
inspection by the public on reasonable notice and at reasonable hours.
Regulations
(1) The
board may, with the approval of the minister, make regulations respecting
(
a) the registration and licensing of dentists under
this Act;
(
b) continuing competency and education requirements;
(
c) the education and practice experience
requirements for registration and licensing of dentists;
(
d) the requirement of dentists to carry
professional liability insurance;
(
e) registration and the issuing of licences and
granted;
(
f) providing for the maintenance of a register of
specialists and the form and content of that register, and the educational requirements
for the registration of specialists, with power to adopt requirements set from
time to time by recognized dental bodies in Canada;
(
g) the registration and annual licensing of
professional dental corporations;
(
h) alternative dispute resolution for the
purposes of
section 30 and the procedure for
that resolution;
(
i) time limits for events in the disciplinary
process in sections 26 to 42 , including time limits for
(
i) the filing of an allegation,
(ii) the resolution of an allegation by the registrar,
(iii) the conduct of an investigation under
section 30 ,
(iv) consideration of an allegation by the board following
completion of an investigation,
(
v) responding to a complainant and respondent at
each stage of the process,
(vi) the conduct of a practice investigation under
paragraph 30 (1)(c),
(vii) the appointment of an adjudication tribunal
under
section 31 , and
(viii) the conduct of a hearing and the filing of a
decision or order by an adjudication tribunal following completion of the
hearing; and
(
j) the giving effect generally to the purpose of
this Act.
(2) Notwithstanding subsection (1), the minister
may make regulations to prescribe time limits for events in the disciplinary
process under sections 26 to 42 where the board does not do so in a time period
the minister considers reasonable.
Regulations re:
dental auxiliaries
12. Subject
to the approval of the minister, the board may, with respect to dental
auxiliaries, make regulations
(
a) defining who is a dental auxiliary;
(
b) prescribing the qualifications necessary for
dental auxiliaries to be registered and licensed, including conditionally licensed,
under this Act;
(
c) providing for the registration and licensing
of dental auxiliaries;
(
d) prescribing the services that may be provided
by dental auxiliaries;
(
e) establishing standards of conduct and competence
for dental auxiliaries;
(
f) defining professional misconduct for dental
auxiliaries;
(
g) defining the activities which constitute a
conflict of interest and prohibiting the engagement of a dental auxiliary in
those activities; and
(
h) concerning other matters with respect to
dental auxiliaries that the board considers necessary.
Licence
(1) The
board shall issue a licence to every person who pays the prescribed fee who
(
a) has completed the entire course of studies
required by and holds a degree or diploma in dentistry from a university, college
or school of dentistry recognized and approved by the board;
(
b) holds the academic qualifications prescribed
by the regulations and has passed the examination that may be prescribed by the
regulations;
(
c) maintains professional malpractice insurance of
the kind and in the amount set by the board;
language that the board considers sufficient to enable the person to practise
dentistry in the province; and
(
e) meets the other requirements relating to the
licensing of dentists that the board may prescribe by regulation.
(2) Where, immediately before applying for a
licence under this Act, a person was, under the laws of another province or
territory of Canada, licensed and in good standing to practise dentistry or as
a dental auxiliary in that province or territory, the board shall register that
person as a practitioner or dental auxiliary and issue a licence to him or her
provided that he or she
(
a) pays the required fee; and
(
b) meets those other requirements that may be
prescribed by regulation.
(3) It is a condition of the issuance of every
licence to practice dentistry under this
section and
section 14 that the person to whom the licence is issued
shall, within one month of the date of the issuance of the licence, become a
member of the association, and the failure of a person to comply with this
condition renders the licence void from that date.
Conditional licence
(1) The
board may, upon receipt of the prescribed fee, issue a conditional licence to a
person who meets the qualifications set out in the regulations.
(2) A conditional licence issued under subsection
(1) shall be issued subject to the terms, conditions and limitations that may
be set out in the licence.
(3) The holder of a conditional licence under this
section has the right to engage in the practice of dentistry or to practice as
a dental auxiliary only under the terms, conditions and limitations set out in
it.
Fees and forms
15. The
board may set fees and prescribe forms for the purpose and administration of
this Act.
Annual remittance
16. Every
practitioner whose licence under this Act is subsisting shall annually, before December
1, remit to the board those fees that may be prescribed, for the purpose of
maintaining a licence to practise dentistry in the province for the year then
commencing.
Amount of fees
(1) In
prescribing the amount of fees under
section 15
the board shall ensure that the level of those fees is sufficient to provide it
with the income necessary to discharge its functions and duties under this Act.
(2) All money received by the board shall be
applied by the board in the discharge of its functions and duties under this
Act.
Definitions
18. In
sections 19 to 25
(a) "non-voting share" means an issued
share of a professional dental corporation that is not a voting share; and
(b) "voting share" means an issued share
of a professional dental corporation with the right to vote at a meeting of
shareholders attached to it.
Professional corporation
(1) One
or more practitioners may incorporate a corporation to provide the services of
a dentist.
(2) The corporation shall be incorporated under
the Corporations Act .
(3) The name of the corporation shall meet the
requirements of subsection 17(1) of the Corporations
Act .
(4) A corporation shall not provide the services
of a dentist unless it is registered and licensed under this Act.
Corporate
register
(1) The
registrar shall maintain a register of professional dental corporations in
which shall be entered the names of those corporations permitted under this Act
to provide the services of a dentist.
(2) The board shall direct the registrar to
register a professional dental corporation that establishes that
(
a) all the voting shares of the corporation are
beneficially owned by and registered in the name of one or more practitioners
and there is no restriction on the right of each practitioner to exercise his
or her vote as he or she wishes to;
(
b) the non-voting shares are owned by a natural
person;
(
c) all the directors of the corporation are
practitioners, and there is no agreement restricting the powers of the
directors to manage the business and affairs of the corporation in relation to
the practice of dentistry;
(
d) all of the persons who will be practising
dentistry as employees of or on behalf of the corporation are practitioners;
(
e) the articles of the corporation restrict it to
providing the services of a dentist and related matters;
(
f) the corporation is in good standing under the Corporations Act ; and
(
g) the corporation has complied with other
requirements for registration in the regulations made under
section 11 .
(3) The corporate register shall be published in
accordance with
section 9 and a copy of the
register shall be available for inspection under that section.
(4) The board may enter into a reciprocal
agreement with a dental board, association or other body having responsibility
for the registration and licensing of professional dental corporations in
another jurisdiction for the registration of corporations from that
jurisdiction in the register of the board.
(5) Notwithstanding subsection (2), the voting
shares of a professional dental corporation may be held by
(
a) an executor or administrator of the estate of
a deceased practitioner to discharge the duties of that position; or
(
b) a trustee in bankruptcy to discharge his or
her duties as trustee in respect of the corporation or a practitioner,
for no longer than 180 days, or a longer
period where the registrar permits.
Annual licence
(1) A
professional dental corporation may apply for a licence to provide the services
of a dentist in the province and the board shall issue the corporate licence
provided that
(
a) the professional dental corporation is
registered under this Act;
(
b) the application is accompanied by a licence
fee which may be established by the board; and
(
c) the professional dental corporation continues
to meet the requirements for registration set out in
section 20 and other requirements for being licensed which
may be set out in this Act and the regulations made under
section 11 .
(2) The holder of a licence issued under this
section is entitled to recover from a
person, in a court of the province having jurisdiction to order payment from
that person, reasonable charges for the provision of professional services by
that licence holder.
(3) A licence issued under this
section expires on
January 15 following the day upon which it is issued.
Revocation of
licence
22. A
licence issued under
section 21 may be revoked
by the board where
(
a) the professional dental corporation ceases to
meet a requirement for registration or licensing under this Act;
(
b) the professional dental corporation
contravenes this Act or the regulations; or
(
c) a practitioner is disciplined under sections 26 to 42 in respect
of professional services performed by him or her as an employee of or on behalf
of the professional dental corporation.
Effect of
incorporation
(1) A
practitioner who provides professional services to or through a professional
dental corporation is, notwithstanding his or her relationship to the
professional dental corporation or the relationship between the patient and the
professional dental corporation, subject to
(
a) the application of this Act as if he or she
were providing services as an individual practitioner; and
(
b) the same duties and responsibilities in
connection with his or her dealings with patients of the professional dental
corporation as if he or she were providing services directly to those patients.
(2) The relationship between a professional dental
corporation and a patient receiving services from or through that corporation
is subject to the laws relating to the confidential and ethical relationship
between a practitioner and his or her patient.
(3) All rights and obligations pertaining to
communications made to, or information received by, practitioners apply to the
shareholders, directors, officers and employees of a professional dental corporation.
Liability of
dentist
(1) Notwithstanding
a provision to the contrary in the Corporations
Act , a practitioner who provides services or practises dentistry through or
on behalf of a professional dental corporation is liable to a person in
relation to those services and the practice of dentistry to the same extent and
in the same manner as if the practitioner provided those services as an individual
and that liability is not affected because of the practitioner's relationship
to the professional dental corporation as a shareholder, director, officer, employee
or in another capacity.
(2) A practitioner is jointly and individually
liable with a professional dental corporation for all claims made against the
corporation in connection with the provision of services or the practice of
dentistry by the practitioner.
(3) In this
section "practitioner"
includes a person formerly licensed under this Act to practice dentistry.
Misconduct of a
professional dental corporation
(1) A
practitioner is liable to be disciplined under sections 26 to 42 for the
actions or conduct of a professional dental corporation while the practitioner
was a shareholder, director, officer or employee of the professional dental
corporation.
(2) A practitioner shall not be liable to
discipline under subsection (1) where the practitioner proves that he or she
did not know and could not reasonably have known about the relevant actions or
conduct of the professional dental corporation.
(3) Any powers of inspection, investigation or
inquiry that may be exercised in respect of a practitioner under sections 30 and 44 may be
exercised in respect of a professional dental corporation or its records in
connection with an inquiry under subsection (1).
(4) A professional dental corporation is jointly
and individually liable with the practitioner for all fines and costs the
practitioner is ordered to pay in connection with an inquiry under subsection
(1).
(5) In this section, "practitioner"
includes a person formerly licensed under this Act to practice dentistry.
Definitions
26. In
this
section and sections 27 to 42
(a) "allegation" means a written
document alleging that a person has engaged in conduct deserving of sanction;
(b) "complainant" means a person making
an allegation;
(c) "conduct deserving of sanction"
includes
(
i) professional misconduct,
(ii) professional incompetence,
(iii) conduct unbecoming a practitioner,
(iv) incapacity or unfitness to engage in the
practice of dentistry, and
(
v) acting in breach of this Act, the regulations
or the code of ethics made under
section 10 ;
(d) "costs incurred by the board"
includes
(
i) out of pocket expenses incurred by or on
behalf of the board,
(ii) amounts paid by the board to adjudication
tribunal members as remuneration and for expenses, and
(iii) the actual cost of legal counsel for the board
and the adjudication tribunal;
(e) "disciplinary panel" means the panel
of persons appointed under
section 27 from
which the members of an adjudication tribunal are chosen;
(f) "practitioner", in this
section and sections
27 to 42
includes a dental auxiliary and a former practitioner; and
(g) "respondent" means a practitioner against
whom an allegation is made.
Committees
(1) The
board shall appoint at least 5 of its members, one of whom is a person
appointed under paragraph 5 (2)(
b) and one of
whom is a person appointed under paragraph 5 (2)(c),
to constitute a complaints authorization committee.
(2) The board shall appoint the chairperson and
vice-chairperson of the complaints authorization committee from the persons
appointed under subsection (1).
(3) Three members of the complaints authorization
committee, one of whom is a person appointed by the minister to represent the
public interest, constitute a quorum of the committee.
(4) Where a dental auxiliary is the subject of an
allegation the quorum required under subsection (3) shall include a person
appointed to the board under paragraph 5 (2)(b).
(5) The registrar is not eligible to be a member
of the complaints authorization committee.
(6) The board shall appoint at least 8 practitioners
who are not members of the board, one of whom shall be appointed to serve as
chairperson, and the minister shall appoint at least 4 persons, who are not practitioners
or members of the board,
(a) 2 of whom shall be representatives of dental
auxiliary groups normally defined by the board in regulations made under
section 12 ; and
(b) 2 of whom shall represent the public interest,
who shall together constitute a disciplinary
panel.
(7) Of the members first appointed to the
disciplinary panel, one half shall be appointed for a term of 2 years and the
remainder for a term of 3 years and all subsequent appointments of members to
the disciplinary panel shall be for a term of 3 years.
(8) Notwithstanding the expiry of his or her term,
a member of the disciplinary panel continues to be a member until he or she is
re-appointed or his or her replacement is appointed.
(9) Persons appointed to the disciplinary panel
may be reappointed.
(10) Members of the disciplinary panel shall serve
on the panel without payment for their services, but may be remunerated for
service as a member of an adjudication tribunal and paid their travel and other
expenses associated with the work of that tribunal by the board, in accordance
with and at the rates set by the by-laws.
(11) The complaints authorization committee, an
adjudication tribunal appointed under
section 31
and a person appointed by either of them may summon a respondent or other
person and require the respondent or other person to give evidence, orally or
in writing, upon oath or affirmation, and produce the documents and things that
either of them considers necessary to the full investigation and hearing of an
allegation or complaint and shall have the powers, privileges and immunities
that are conferred on a commissioner appointed under the Public Inquiries Act, 2006.
Allegation
(1) An
allegation shall be in writing and signed by the complainant or his or her
solicitor, and filed with the registrar.
(2) The registrar may on his or her own motion
make an allegation and file it, and the allegation shall have the same effect
as an allegation referred to in subsection (1).
(3) Where the registrar has been informed that a respondent
has been convicted of an offence under the provisions of the Criminal Code or a similar penal statute
of another territory or country or has been suspended by a governing body of practitioners
in another province or territory of Canada or another territory or country for
reason of professional misconduct, conduct unbecoming a practitioner or
professional incompetence, the information shall be dealt with by the registrar
as an allegation.
(4) For the purpose of subsection (3), a certified
copy of the record of a conviction or findings made or the action taken by an
external regulatory body constitutes proof, in the absence of evidence to the
contrary, of the conviction or findings made or the action taken by that body,
without proof of the signature of the convicting justice or person purporting
to have signed on behalf of that body.
Effect of filing
allegation
(1) Where
it appears to the registrar after notifying the respondent of the allegation
that the allegation may be resolved satisfactorily and where the complainant
and the respondent consent, the registrar may attempt to resolve the matter.
(2) Where the allegation is not satisfactorily
resolved by the registrar under subsection (1), he or she shall refer the allegation
and all other allegations to the complaints authorization committee.
(3) The registrar shall inform a complainant and a
respondent of the referral of the allegation to the complaints authorization committee.
Complaints authorization
committee
(1) After
an allegation has been submitted to the complaints authorization committee, the
committee may exercise one or more of the following powers:
(
a) refer the allegation back to the registrar for
an investigation or alternative dispute resolution, or both in accordance with
the regulations;
(
b) conduct an investigation itself or appoint a
person to conduct an investigation on its behalf;
(
c) conduct a review of the respondent's practice
or the conduct of a corporation to which sections 18
to 25 apply of which the practitioner is a
voting shareholder; and
(
d) require the respondent to appear before it.
(2) Where the complaints authorization committee
is of the opinion that there are no reasonable grounds to believe the
respondent has engaged in conduct deserving of sanction, the committee shall dismiss
the allegation and give notice in writing of the dismissal to the complainant
and the respondent.
(3) Where the complaints authorization committee
is of the opinion that there are reasonable grounds to believe that a
respondent has engaged in conduct deserving of sanction, the allegation shall
be considered as constituting a complaint, and the committee may
(
a) counsel or caution the respondent; or
(
b) instruct the registrar to file the complaint
against the respondent and refer it to the disciplinary panel; and
(
c) suspend or restrict the practitioner's right
to practise.
(4) A person conducting an investigation under subsection
(1) may require
(
a) the respondent to
(
i) undergo an examination or assessment he or she
considers necessary and as arranged by the registrar, and
(ii) permit the registrar or a member of the complaints
authorization committee or a person appointed by the complaints authorization
committee to inspect and copy the records of the respondent and other documents
relating to the subject matter of the investigation; and
(
b) another person to permit the registrar or a
member of the complaints authorization committee or a person appointed by the
complaints authorization committee to inspect and copy records and other
documents relating to the subject matter of the investigation held by that
person,
and the respondent or other person shall
comply.
(5) An action for damages does not lie against a practitioner
or another person to whom a request is made solely because he or she provides
information requested of him or her under subsection (4).
(6) Where the registrar, a member of the complaints
authorization committee or a person appointed by the complaints authorization
committee requires that a respondent or another person provide information
under subsection (4), that information shall be provided within 7 days of
receipt of the request or a different period as specified in the request.
(7) A complainant whose allegation is dismissed by
the complaints authorization committee under subsection (2) may, within 30 days
after receiving notice of the dismissal, appeal the dismissal to the Trial
Division by filing a notice of appeal with the Registrar of the Supreme Court.
(8) Subsections (4), (5) and (6) apply to the
Crown.
Adjudication tribunal
(1) For
the purpose of dealing with complaints referred to the disciplinary panel, the
chairperson of the disciplinary panel shall appoint from it an adjudication
tribunal consisting of 3 persons, of whom 2 shall be practitioners and one
shall be a member of the panel appointed to represent the public interest.
(2) The chairperson of the disciplinary panel
shall appoint one of the practitioners on an adjudication tribunal to be the
chairperson.
Hearing
(1) Where
a complaint has been referred under paragraph 30 (3)(b),
an adjudication tribunal shall hear the complaint.
(2) The parties to a hearing are the board and the
respondent and a party may be represented by his or her counsel at a hearing.
(3) A hearing shall be conducted in public but an
adjudication tribunal may exclude the public from a hearing, or from part of
it, where it considers that the desirability of protecting a party to the complaint
or another person against the consequences of possible disclosure of personal
matters outweighs the desirability of holding the hearing in public.
Copies of books,
etc. as evidence
33. A
copy or extract of a book, record, document or thing certified by
(
a) a member of the complaints authorization
committee; or
(
b) a person authorized under subsection 30 (4) to conduct an inspection,
who made the copy or extract under
subsection 30 (4) is admissible in evidence in
an action, proceeding or prosecution, in the absence of evidence to the
contrary, as evidence of the original book, record, document or thing and its
contents.
Guilty plea by
respondent
(1) Where
a respondent pleads guilty to one or more of the charges set out in a complaint,
the adjudication tribunal shall, without calling evidence or hearing witnesses,
unless the tribunal believes it is appropriate to do so, hear submissions from
the parties.
(2) Where a respondent pleads guilty, and
following submissions under subsection (1), the adjudication tribunal may
(
a) reprimand the respondent;
(
b) order that the respondent be suspended for a
fixed period that it considers appropriate, until the respondent can demonstrate
to the board or other body or person designated by the adjudication tribunal
that conditions which it may impose are fulfilled, or until further order of
the adjudication tribunal;
(
c) allow or direct the respondent to surrender
his or her licence to the board upon those conditions that may be considered appropriate
and strike the respondent's name from the register;
(
d) impose a fine not to exceed $10,000 to be paid
to the board;
(
e) order that the respondent pay the costs or a
part of the costs incurred by the board in the investigation and hearing of the
complaint;
(
f) order that the registrar publish a
summary of
the decision including the information set out in subsection 36 (4) and other information that the tribunal may
specify; and
(
g) order that the respondent comply with one or
more of the following:
(
i) make restitution to the complainant or other
person affected by the conduct of the respondent,
(ii) obtain medical treatment,
(iii) obtain counselling,
(iv) obtain substance abuse counselling or
treatment, until the respondent can demonstrate to the board or other body or
person designated by the adjudication tribunal that a condition related to
substance abuse rendering the respondent incapable or unfit to practise has
been rehabilitated such that the respondent can safely return to practice,
(
v) engage in continuing education programs,
(vi) complete a course of studies or obtain
supervised clinical experience, or both, to the satisfaction of the board or
another body or person designated by the adjudication tribunal,
(vii) report on his or her compliance with an order
made under this
section and authorize others involved with his or her treatment
or supervision to report on it,
(viii) restrict his or her professional practice or
continue his or her practice under specified conditions,
(ix) permit periodic inspection of his or her
practice,
(
x) permit periodic inspection of records relating
to his or her practice, or
(xi) impose other requirements that are just and
reasonable in the circumstances.
(3) The costs incurred by the board to ensure the
compliance of a respondent with an order or direction of an adjudication
tribunal under this
section shall be borne by the respondent.
Powers of adjudication
tribunal
(1) Upon
the hearing of a complaint, an adjudication tribunal shall decide whether or
not a respondent is guilty of conduct deserving of sanction.
(2) Where an adjudication tribunal decides that a
respondent is not guilty, it shall dismiss the complaint and may, where it
believes that the submission of the complaint to the tribunal for a hearing was
unreasonable,
(
a) order that those costs that the tribunal
considers appropriate be paid by the board to the respondent; and
(
b) make another order that it considers
appropriate.
(3) Where an adjudication tribunal decides that a
respondent is guilty, it may
(
a) reprimand the respondent;
(
b) order that the respondent be suspended for a
fixed period that it considers appropriate, until the respondent can demonstrate
to the board or other body or person designated by the adjudication tribunal
that conditions which it may impose are fulfilled, or until further order of
the adjudication tribunal;
(
c) allow or direct the respondent to surrender
his or her licence to the board upon those conditions that may be considered
appropriate and strike the respondent's name from the register;
(
d) impose a fine not to exceed $10,000 to be paid
to the board;
(
e) order that the respondent pay the costs or a
part of the costs incurred by the board in the investigation or hearing of the
complaint;
(
f) order that the registrar publish a
summary of
the decision including the information set out in subsection 36 (4) and other information that the tribunal may
specify; and
(
g) order that the respondent comply with one or
more of the following:
(
i) make restitution to the complainant or other
person affected by the conduct of the respondent,
(ii) obtain medical treatment,
(iii) obtain counselling,
(iv) obtain substance abuse counselling or
treatment, until the respondent can demonstrate to the board or other body or
person designated by the adjudication tribunal that a condition related to
substance abuse rendering the respondent incapable or unfit to practise has
been rehabilitated such that the respondent can safely return to practice,
(
v) engage in continuing education programs,
(vi) complete a course of studies or obtain
supervised clinical experience, or both, to the satisfaction of the board or
other body or person designated by the adjudication tribunal,
(vii) report on his or her compliance with an order
made under this
section and authorize others involved with his or her treatment
or supervision to report on it,
(viii) restrict his or her professional practice or
continue his or her practice under specified conditions,
(ix) permit periodic inspection of his or her
practice,
(
x) permit periodic inspection of records relating
to his or her practice, or
(xi) impose other requirements that are just and
reasonable in the circumstances.
(4) The costs incurred by the board to ensure the
compliance of a respondent with an order or direction of an adjudication
tribunal under this
section shall be borne by the respondent.
Filing and publication
of decisions
(1) An
adjudication tribunal shall file a decision or order made under subsection 34 (2) or 35 (3) with
the registrar and provide a copy to the complainant, the respondent, the
respondent's employer and the minister.
(2) The registrar shall maintain a copy of a
decision or order filed under subsection (1) for a minimum of 5 years after the
day the decision is filed and shall upon receiving a request to view the
disciplinary records in relation to a practitioner permit a person to view those
records.
(3) The registrar shall publish a
summary of a
decision or order of an adjudication tribunal in a newspaper of general circulation
in or nearest to the community in which the respondent practises within 14 days
of the expiry of the appeal period provided in
section 42 where the decision or order
(
a) suspends the respondent;
(
b) allows or directs the respondent to surrender
his or her licence;
(
c) restricts the respondent's practice;
(
d) specifies conditions for the continuing
practice of the respondent; or
(
e) requires that a
summary of the decision or
order be published.
(4) The
summary of the decision published under
subsection (3) shall include
(
a) the name of the respondent and the address
where he or she practises;
(
b) the date, location and a brief description of
the conduct of the respondent that was found to be deserving of sanction;
(
c) the name of the complainant, unless the
complainant has requested that his or her name be withheld;
(
d) the contents of the order in relation to the
actions referenced in paragraphs (3)(
a) to (d); and
(
e) other information specified for publication in
the decision or order.
(5) Where a decision published under this
section is
varied or set aside, the registrar shall within 14 days of the filing of the
subsequent decision or order publish a
summary of the decision or order and subsections
(3) and (4) apply, with the necessary changes.
(6) The registrar may give notice of the decision
and information respecting the decision to the other persons the board may
direct and shall include a
summary of the decision in a certificate of good
standing issued in relation to the respondent.
De-registration
and suspension
(1) Where
a respondent is allowed or directed to surrender his or her licence, his or her
rights and privileges as a practitioner to practise cease.
(2) Where a respondent requests that his or her
name be removed, or where his or her name is struck off, a register maintained
under this Act, his or her rights and privileges as a practitioner cease.
(3) Where a respondent is suspended, his or her
rights and privileges as a practitioner cease for the period of suspension.
(4) Where conditions or restrictions have been
imposed upon a respondent's ability to carry on his or her practice, his or her
rights and privileges as a practitioner shall be limited to the extent
specified by the conditions or restrictions.
Failure to comply
(1) On
application by the board to the disciplinary panel, an adjudication tribunal
may make an order suspending the licence of a respondent where it determines
that the respondent has failed to comply with a decision or an order under sections
26 to 42 .
(2) The parties to the application are the board and
the respondent.
(3) An order of an adjudication tribunal under
this
section may suspend the licence of the respondent for a fixed period that
the adjudication tribunal may consider appropriate, or until conditions which
it may impose are fulfilled, or until further order of the adjudication tribunal.
Reinstatement and
readmission
(1) Where
a decision or order of an adjudication tribunal
(
a) suspends the respondent;
(
b) allows or directs the respondent to surrender
his or her licence or to be removed from a register maintained under this Act;
(
c) restricts the respondent's practice; or
(
d) specifies conditions for the continuing
practice of the respondent,
and where the respondent alleges that new
evidence has become available or a material change in circumstances has
occurred since the making of the decision or order, the respondent may apply to
the complaints authorization committee for a supplementary hearing to discharge
or vary the decision or order based on the new evidence or material change in
circumstances.
(2) An application under subsection (1) shall be
made not more than 90 days after the new evidence becomes available or the
material change in circumstances has occurred.
(3) Where an application is made to the complaints
authorization committee under subsection (1), and the committee is of the opinion
that new evidence has become available or that a material change in
circumstances has occurred, as alleged by a respondent, the matter shall be
referred to an adjudication tribunal as if it were a matter referred under
paragraph 30 (3)(
b) and sections 32 to 37 apply, with
the necessary changes, to the referred matter.
(4) The parties to a supplementary hearing under
this
section are the respondent and the board.
(5) For the purpose of this section, in addition
to an order that an adjudication tribunal may make under
section 35 , a tribunal may
(
a) vary the original decision or order made under
section 35 ; or
(
b) discharge the original decision or order, with
or without conditions.
Costs of the board
(1) Where
a person who was ordered to pay the costs of the board under paragraph 34 (2)(
e) or 35 (3)(
e) fails to pay in the time required, the board may suspend the registration or
licence of that person until the costs are paid.
(2) Costs ordered to be paid under paragraph 34 (2)(
e) or 35 (3)(
e) are a debt due to the board and may be recovered by the board by a civil action.
Collection of
fine
(1) Where
an order is made under
section 34 or 35 imposing a fine on a respondent, the board may
issue a certificate stating the amount of the fine due and remaining unpaid and
the name of the person by whom it is payable, and file the certificate with the
Registrar of the Supreme Court.
(2) Where a certificate is filed with the
Registrar of the Supreme Court under subsection (1), it has the same effect and
all proceedings may be taken on the certificate as if it were a judgment of the
Trial Division for the recovery of the amount stated in the certificate against
the person named in the certificate.
(3) A person named in a certificate filed under
this
section may, within 30 days after the certificate is filed, apply to a
judge of the Trial Division for a review, on a question of law or jurisdiction,
of the certificate.
(4) On an application under subsection (3), the
judge may make any amendment to the certificate that is necessary to make the
certificate accord with the judge's decision.
(5) There is no appeal from a decision of a judge
made under this section.
(6) A certificate filed under this
section may
also be filed in the judgment enforcement registry on the expiration of the 30
day period referred to in subsection (3) in accordance with
Part III of the Judgment Enforcement Act and be enforced
in accordance with that Act.
Appeal
(1) The
board or the respondent may, within 30 days after receiving notice of a
decision or order of an adjudication tribunal, appeal the decision or order or
a part of it to the Trial Division by filing a notice of appeal with the
Registrar of the Supreme Court.
(2) An appeal under this
section does not stay the
decision or order being appealed unless the Trial Division orders otherwise.
Application of
sections to professional corporation
(1) Sections
26 to 42 apply,
with the necessary changes, to a corporation to which sections 18 to 25 apply, as if
it was a member.
(2) Regulations made under
section 11 respecting the disciplining of members under
sections 26 to 42
apply to a corporation to which sections 18 to 25 apply as if it was a member.
Evidence of registration
(1) Where
registration is at issue, the production of a copy of the register, certified
and signed by the registrar, is sufficient evidence of all persons who are
registered in place of the production of the original, and a certificate upon a
copy of the register purporting to be signed by a person as registrar is, in
the absence of evidence to the contrary, proof that the person is the registrar.
(2) The absence of the name of a person from the
register or a copy of the register certified according to subsection (1) is, in
the absence of evidence to the contrary, proof that that person is not registered.
Inspection
(1) The
board may appoint representatives that it considers advisable to inspect places
where dentistry is practised in the province and to assess the quality of
dentistry practised there.
(2) The representatives may enter, without notice
and at all reasonable times, places where dentistry is practised to make all
necessary inspections.
(3) The representatives shall report to the board
and the practitioner concerned the results of their inspection together with
their recommendations for the remedying of an unethical, unsanitary, illegal or
improper conduct, condition, practice or procedure that is found.
(4) A recommendation of the representatives that
is not promptly and adequately adopted and carried into effect by the practitioner
concerned shall be reported by the representatives to the board who shall make
a formal written demand on that practitioner to adopt and carry that
recommendation into effect.
(5) Failure on the part of a practitioner to
comply promptly and completely with a demand made under subsection (4) is considered
to be professional misconduct on the part of the practitioner.
(6) A practitioner who is aggrieved by a report or
recommendation of the representatives or demand of the board made under this
section may appeal the report or recommendation to a judge of the Trial
Division.
Offences and
penalties
46. A
person who
(
a) is not licensed and registered in accordance
with the provisions of this Act, and who, by himself or herself or by another
person, practises dentistry or holds himself or herself out as qualified or
entitled to so practise;
(
b) knowingly aids and abets another in the
contravention of this Act;
(
c) permits or allows a person in his or her
employ other than a licensed and registered dentist to practise dentistry;
(
d) procures or attempts to procure for himself or
herself registration in accordance with this Act by making a false or
fraudulent representation or declaration, either oral or in writing; or
(
e) contravenes this Act or the regulations,
is guilty of an offence and liable on
summary
conviction to a fine not exceeding $10,000 and in default of payment to
imprisonment for a term not exceeding 3 months or to both a fine and
imprisonment.
Protection from
liability
47. An
action for damages does not lie against the registrar, an officer, employee or
agent of the board, a member of a disciplinary panel, adjudication tribunal or
the individual members of those bodies, a person appointed by the complaints
authorization committee to conduct an investigation, another agent of the board
for
an act or failure to act or a proceeding initiated or carried out in good
faith under this Act, or for carrying out duties or obligations authorized
under this Act or for a decision or order made or enforced in good faith under
this Act.
Transitional
(1) The
members of the Newfoundland Dental Board continued under the Act repealed by
this Act in office on the day this Act comes into force shall serve, for no
longer than one year, as the members of the board continued under
section 5 of this Act notwithstanding the requirements of
that
section respecting the composition of the board.
(2) Notwithstanding subsection 5 (3), at the first election or appointment of the members
of the board, 2 of the members referred to in paragraph 5 (2)(a), one of the members referred to in paragraph 5 (2)(
b) and one of the members referred to in paragraph
5 (2)(
c) shall be elected or appointed for a
period of 2 years.
(3) A disciplinary action that was started under
section 26 of the Act repealed by this Act and that has not concluded on the
day that Act is repealed shall be continued and concluded under that
section as
if the
section had not been repealed.
RSNL1990 c D-6
Rep.
49. The Dental
Act is repealed.
Commencement
50. This Act comes into force on January 1, 2009 .
Earl G. Tucker, Queen's Printer