First

Session, 47th General Assembly

Elizabeth II, 2012

BILL 25

AN ACT RESPECTING THE

PRACTICE OF

OPTOMETRY IN THE PROVINCE

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

SUSAN SULLIVAN

Minister of Health and Community Services

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would repeal and substitute

the Optometry Act, 2004 . The Bill

would

rename the Newfoundland

and Labrador Optometric Board the Newfoundland

and Labrador College of Optometrists;

state the mandate and objects

of the college;

create an executive branch of

the college known as the council;

allow optometry students to

perform, under the direct supervision of a practitioner, tasks within the scope

of practice of an optometrist;

establish a quality assurance

program that includes continuing education and professional development; and

incorporate quality assurance

measures by authorizing the appointment of a quality assurance committee to

perform quality assurance reviews, and by requiring compliance with those

reviews.

A BILL

AN ACT RESPECTING THE PRACTICE OF OPTOMETRY

IN THE PROVINCE

Analysis

Short title

Definitions

Application

PART

ASSOCIATION

Association

Membership

PART

THE COLLEGE

College of optometrists

Objects of college

Council of the college

Appointed directors

Registrar

Meetings

By-laws

Annual report

Application for licence

Licence

Annual renewal

Students

PART

III

PROFESSIONAL OPTOMETRIC CORPORATION

Definitions

Professional corporation

Corporate register

Annual licence

Revocation of licence

Effect of incorporation

Liability of optometrist

Misconduct of a professional optometric

corporation

PART

DISCIPLINE

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 college

Collection of fine

Appeal to Trial Division

PART

QUALITY ASSURANCE

Quality assurance program

Quality assurance committee

Assessment

Report and compliance

Costs

Termination of review

Duty to report

PART

GENERAL

Referral

Pharmaceuticals

Use of trade name

Use of certain titles

Action prohibited

Offence

Proof

Regulations

Fees and forms

PART

VII

TRANSITION, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT

Transition

SNL2005 cD-25.1 Amdt.

RSNL1990 cH-3 Amdt.

SNL2008 cP-7.01 Amdt.

SNL1994 cP-12.1 Amdt.

SNL2006 cP-12.01 Amdt.

SNL2004 cO-7.01 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 Optometry Act,

Definitions

2. In

this Act

(a) "association" means the Newfoundland and

Labrador Association of Optometrists Inc.;

(b) "by-laws" means the by-laws made by

the council under

section 12 and the

Corporations Act;

(c) "college" means the Newfoundland and

Labrador College of Optometrists continued under

section 6;

(d) "council" means the council referred

to in

section 8;

(e) "director" means a person elected or

appointed to the council;

(f) "licence" means a licence to

practise optometry issued and in force under this Act;

(g) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(h) "ophthalmic appliances" means

lenses, spectacles, eyeglasses, artificial eyes, contact lenses, or accessories

for the relief or correction of a visual or muscular error or defect of the

eye;

(i) "ophthalmic dispensing" means

(

i) supplying, preparing and dispensing ophthalmic

appliances,

(ii) interpreting prescriptions of optometrists or

medical practitioners, and

(iii) fitting, adjusting and adapting of ophthalmic

appliances to the human face and eyes in accordance with the prescriptions of optometrists

or medical practitioners;

(j) "optometrist" means a person who

through specialized education, training and experience is skilled in the

principles and practice of optometry;

(k) "optometry" means the services

usually performed by an optometrist, and includes

(

i) measuring or attempting to measure the

refractive or muscular condition of the eye,

(ii) prescribing and ophthalmic dispensing of

ophthalmic appliances,

(iii) prescribing orthoptic treatment for the relief

or correction of a visual or muscular error or defect of the eye,

(iv) removing superficial foreign bodies from the

human eye and surrounding tissue in accordance with the regulations, and

(

v) prescribing and administering pharmaceutical

agents in accordance with the regulations where the optometrist is certified by

the council as qualified;

(l) "practitioner" means an optometrist

licensed to practise under this Act;

(m) "professional optometric

corporation" means a corporation that is permitted under

Part III to

provide the services of an optometrist;

(n) "register" means the register

referred to in

section 10; and

(o) "registrar" means the registrar

elected under

section 8.

Application

(1) This

Act does not apply to or affect

(

a) a medical practitioner registered under the

laws of the province;

(

b) a registered nurse or a nurse practitioner who

checks the visual acuity of a person or a person authorized by another Act or

regulation to perform these checks;

(

c) a person who provides orthoptic services under

the direction of a medical practitioner; or

(

d) a person engaged solely in ophthalmic

dispensing.

(2) This Act does not prevent the sale of

protective glasses for industrial purposes, coloured glasses that are not

ophthalmic appliances or goggles or magnifying glasses not sold or designed for

the relief, prevention or correction of visual or ocular anomalies of the eyes.

PART I

ASSOCIATION

Association

(1) The

Newfoundland Association of Optometrists is continued under the name

Newfoundland and Labrador Association of Optometrists Inc. as a corporation

without share capital for the purposes of

Part XXI of the Corporations Act .

(2) The objects of the association shall include,

notwithstanding anything in the by-laws of the association,

(

a) advancing and protecting the profession of

optometry in the province; and

(

b) improving the practice of optometry and

optometric education in the province.

(3) Notwithstanding its incorporation under this

Act, the association shall be governed by the Corporations Act for all purposes, including a change of the name

of the association.

Membership

5. A

person who holds a licence and pays the membership fee set by the association

is a member of the association notwithstanding anything in the by-laws of the

association.

PART II

THE COLLEGE

College of optometrists

(1) The

Newfoundland and Labrador Optometric Board is continued under the name Newfoundland

and Labrador College of Optometrists as a corporation without share capital for

the purposes of

Part XXI of the Corporations

Act.

(2) All persons who hold a licence issued under

this Act are members of the college.

Objects of

college

(1) The

college is authorized to regulate the practice of optometry and the optometric

profession in the public interest.

(2) The objects of the college include

(

a) the promotion of

(

i) high standards of practice, and

(ii) continuing competency and quality improvement

through continuing education;

(

b) the administration of a licensing program; and

(

c) ensuring that the public interest is protected

by the administration of a quality assurance program and a discipline process.

Council of the

college

(1) The

council consists of

(a) 4 directors elected from and by the

practitioners in accordance with the by-laws; and

(b) 2 directors appointed under

section 9 who are

not practitioners.

(2) The council shall govern the college,

administer its affairs and exercise in the name and on behalf of the college

the powers, privileges and rights of the college.

(3) A member of the board of directors of the

association is ineligible to be a director of the council.

(4) The council shall elect a chairperson from the

directors and a registrar from the elected directors.

(5) The chairperson shall chair all meetings of

the council and the annual general meeting required under

section 11.

(6) A director may be elected for a term set by

the by-laws which shall not exceed 3 years and is eligible to be re-elected,

but shall not hold the office of director for more than 9 consecutive years.

(7) An elected director may resign the office of

director by written notice to the council.

(8) Where an elected director resigns, dies or

becomes incapable of performing the duties of a director, the remaining

directors shall appoint a replacement to serve until the next annual general

meeting.

Appointed

directors

(1) The

minister shall appoint as directors of the council 2 persons who are not

optometrists who are suitable to represent the public interest.

(2) A person appointed under subsection (1) holds

office for a term of 3 years and is eligible to be re-appointed.

(3) Where a person appointed under subsection

(1) holds office for a period of 9 consecutive years the person is not eligible for

appointment as a member of the council until the expiration of 12 months from

the end of the year in which he or she was last a director.

(4) Where the term of an appointed director

expires, he or she continues to be a director until re-appointed or replaced.

(5) The council shall pay the expenses of an

appointed director in accordance with guidelines established by the

Lieutenant-Governor in Council.

(6) A person appointed under subsection (1) may

resign the office of director by written notice to the minister.

Registrar

(1) The

registrar is the secretary of the council and shall

(

a) keep a record of the proceedings of the

council;

(

b) maintain a register containing the names of

those persons qualified and licensed to practise optometry in the province and

other information that the council may require; and

(

c) subject to the payment of applicable fees

under this Act, where the council has approved the licensing of a person, enter

the name of that person in the register and, in accordance with

section 15,

issue to that person a licence to practise optometry.

(2) The registrar shall make the registers of the

college available for inspection by the public on reasonable notice and at

reasonable times.

(3) Where registration or licensure is in issue,

the production of a copy of the register, certified by the registrar, is

sufficient evidence of persons who are licensed or registered in the absence of

the production of the original.

(4) The absence of the name of a person from the

register or a copy of it certified according to subsection (3) is, in the

absence of evidence to the contrary, proof that that person is not licensed or registered.

Meetings

(1) A

quorum of the council is 4 directors, one of whom is an appointed director.

(2) Except where prohibited in the by-laws, a

director may, where all the directors consent, participate in a meeting of the

council by means of telephone or other telecommunication devices that permit

all persons participating in the meeting to communicate with each other.

(3) Where a quorum under subsection (1) exists, a

majority of that number is sufficient to make a decision, and in the event of a

tie the chairperson of the meeting shall cast the deciding vote.

(4) The college shall hold, in accordance with the

by-laws, an annual general meeting of practitioners at which

(

a) the election for directors shall be held; and

(

b) an auditor shall be appointed to audit the

accounts of the college and report on the financial statements of the college.

(5) The council may in its by-laws provide for the

annual general meeting of practitioners to be held or for practitioners to

participate in the meeting by mail, telecommunications or other means.

By-laws

(1) The

council may make by-laws

(

a) respecting the holding and procedure of its

meetings;

(

b) providing for the election of directors under

subsection 11(4) and setting the terms of office;

(

c) the payment of travel and other expenses of

elected directors;

(

d) limiting the participation of directors in a

meeting of the council by telephone or other telecommunications devices;

(

e) providing for voting at a meeting of

practitioners by mail or electronic means;

(

f) respecting the rates of remuneration for

members of an adjudication tribunal;

(

g) setting standards for proof of active

practice;

(

h) establishing a code of ethics which may

include a definition of "professional misconduct" and "conduct

unbecoming an optometrist" for the purposes of

Part IV; and

(

i) generally, to assist in the administration of

this Act and the regulations.

(2) The council shall have its by-laws available

for inspection by the public on reasonable notice and at reasonable hours.

Annual report

(1) The

college shall prepare and submit to the minister before July 1 in a year

(

a) a report on the activities of the council; and

(

b) the college's audited financial statements.

(2) Where the college fails to comply with

subsection (1), the college is guilty of an offence and on

summary conviction

may be fined $1,000.

Application for

licence

(1) A

person may apply for a licence to practise optometry where he or she

(

a) has the academic qualifications set in the

regulations and has passed the examination that may be required by the regulations;

language sufficient to enable the person to practise optometry in the province;

and

(

c) produces evidence of satisfactory character

that is acceptable to the council.

(2) An application shall be directed to the

registrar who shall determine whether the applicant meets the requirements in

subsection (1) or whether further examination is required.

Licence

(1) The

council shall issue to an applicant who meets the qualifications in

section 14,

a licence to practise optometry where he or she

(

a) pays the licence fee set by the council;

(

b) pays outstanding fines, penalties or fees,

which are owed to the college;

(

c) establishes that he or she is not suspended or

restricted with respect to the practise of optometry by a licensing board or

equivalent body governing the practise of optometry in a jurisdiction outside

of the province;

(

d) provides proof that he or she has obtained

professional liability insurance coverage in a form and amount satisfactory to

the council; and

(

e) satisfies other requirements that may be set

by the council in the regulations.

(2) A person who is issued a licence under this

section shall within 30 days of the date the licence is issued, become a member

of the association and the failure of that person to do so makes the licence

void upon the expiry of the 30 days.

(3) A licence issued under this

section shall,

unless cancelled or suspended by the council, expire at midnight on December 31

of the calendar year for which it is issued.

Annual renewal

(1) A

person's licence may be renewed where he or she

(

a) meets the conditions in paragraphs 15(1)(

a) to

(e ) ; and

(

b) submits proof satisfactory to the council that

he or she successfully completed the required continuing education hours.

(2) The council may, as a condition of licence

renewal, require proof of active practice in accordance with standards that may

be set in the by-laws.

(3) The registrar shall issue a renewal licence to

a person who has applied and paid the fees and who is otherwise in compliance

with the Act.

Students

(1) A

person may apply to be registered as a student with the college.

(2) The college shall register a student where

(

a) he or she is enrolled in a professional

optometry school that is acceptable to the council and which requires that the

student complete an external placement;

(

b) the registrar has approved the student's

placement; and

(

c) he or she pays the fee set by the council.

(3) Registration of student confers upon the

student the right to perform tasks within the scope of practice of an

optometrist, but only under the direct supervision of a practitioner.

(4) External placements shall only be completed by

students registered with the college.

PART III

PROFESSIONAL OPTOMETRIC CORPORATION

Definitions

18. In

this Part

(a) "non-voting share" means an issued

share of a professional optometric corporation that is not a voting share; and

(b) "voting share" means an issued share

of a professional optometric 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

an optometrist.

(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 an optometrist unless it is registered and licensed under this Act.

Corporate

register

(1) The

registrar shall maintain a register of professional optometric corporations in

which shall be entered the names of those corporations permitted under this

Part to provide the services of an optometrist.

(2) The council shall direct the registrar to

register a professional optometric 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) a natural person owns the non-voting shares;

(

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 optometry;

(

d) all of the persons who will be practising

optometry as employees of or on behalf of the corporation are practitioners;

(

e) the articles of the corporation restrict it to

providing the services of an optometrist 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.

(3) The corporate register shall be available for

inspection under

section 10.

(4) The college may enter into a reciprocal

agreement with an optometric college, association or other body having

responsibility for the registration and licensing of professional optometric

corporations in another jurisdiction for the registration of corporations from

that jurisdiction in the register of the college.

(5) Notwithstanding subsection (2), the voting

shares of a professional optometric corporation may be held for no longer than

180 days, or a longer period as permitted by the registrar, 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.

Annual licence

(1) A

professional optometric corporation may apply for a licence to provide the

services of an optometrist in the province and the council shall issue the

corporate licence provided that

(

a) the professional optometric corporation is

registered under this Act;

(

b) the application is accompanied by a licence

fee which may be established by the council; and

(

c) the professional optometric 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

regulations.

(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

December 31 of the calendar year for which it is issued.

Revocation of

licence

22. A

licence issued under

section 21 may be revoked by the council where

(

a) the professional optometric corporation ceases

to meet a requirement for registration or licensing under this Act;

(

b) the professional optometric corporation

contravenes this Act or the regulations; or

(

c) a practitioner is disciplined under

Part IV in

respect of professional services performed by him or her as an employee of or

on behalf of the professional optometric corporation.

Effect of

incorporation

(1) A

practitioner who provides professional services to or through a professional

optometric corporation is, notwithstanding his or her relationship to the

professional optometric corporation or the relationship between the patient and

the professional optometric 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

optometric corporation as if he or she were providing services directly to

those patients.

(2) The relationship between a professional

optometric 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 optometric corporation.

Liability of

optometrist

(1) Notwithstanding

a provision to the contrary in the Corporations

Act , a practitioner who provides services as an optometrist through or on

behalf of a professional optometric corporation is liable to a person in

relation to those services 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 practitioners relationship to the professional

optometric corporation as a shareholder, director, officer, employee or in

another capacity.

(2) A practitioner is jointly and individually

liable with a professional optometric corporation for all claims made against

the corporation in connection with the provision of services or the practice of

optometry by the practitioner.

(3) In this section, "practitioner"

includes a person formerly licensed under this Act to practise optometry.

Misconduct of a

professional optometric corporation

(1) A

practitioner is liable to be disciplined under

Part IV for the actions or

conduct of a professional optometric corporation while the practitioner was a

shareholder, director, officer or employee of the professional optometric

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 optometric corporation.

(3) Any powers of inspection, investigation or

inquiry that may be exercised in respect of a practitioner under

Part IV or

Part V may be exercised in respect of a professional optometric corporation or

its records in connection with an inquiry under subsection (1).

(4) A professional optometric 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 practise optometry.

PART IV

DISCIPLINE

Definitions

26. In

this Part

(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 described in

section 28;

(c) "conduct deserving of sanction"

includes

(

i) professional misconduct,

(ii) professional incompetence,

(iii) conduct unbecoming an optometrist, and

(iv) acting in breach of this Act, the regulations,

or the code of ethics made under

section 12;

(d) "costs incurred by the college"

includes

(

i) out of pocket expenses incurred by or on

behalf of the college,

(ii) amounts paid by the college to adjudication

tribunal members as remuneration and for expenses, and

(iii) the actual cost of legal counsel for the

college 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; and

(f) "respondent" means a practitioner, a

former practitioner or a professional optometric corporation against whom an

allegation is made.

Committees

(1) The

council shall appoint the chairperson, vice-chairperson and members of the

complaints authorization committee, and the practitioners who will serve on the

disciplinary panel, one of whom shall be appointed the chairperson.

(2) The complaints authorization committee shall

consist of at least 3 persons, all of whom shall be directors, and at least one

of whom shall be a director who was appointed by the minister.

(3) The registrar is not eligible to be a member

of the complaints authorization committee.

(4) The disciplinary panel shall consist of not

less than 6 practitioners who are not directors and not less than 3 persons who

are not practitioners who shall be appointed by the minister to represent the

public interest.

(5) The appointments of members to the

disciplinary panel shall be for a term of 3 years.

(6) 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.

(7) Persons appointed to the disciplinary panel

may be reappointed.

(8) Members of the disciplinary panel shall serve

as a member of 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 council, in

accordance with the rates set in the by-laws.

(9) The complaints authorization committee and an

adjudication tribunal appointed under

section 31 and a person appointed by either

of them may summon an optometrist or another person and require them 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

practitioner 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

optometrists in another province or territory of Canada or another territory or

country for reason of professional misconduct, conduct unbecoming an

optometrist 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, 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), the registrar 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 in accordance with the regulations;

(

b) conduct an investigation itself or appoint a

person to conduct an investigation on its behalf; and

(

c) require

the respondent to appear before it.

(2) Where the complaints authorization committee

is of the opinion 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.

(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) recommend to the council that

(

i) the respondent's practice be suspended or

restricted, or

(ii) the registrar conduct an investigation of the

respondent's practice, and where the council approves an investigation the

registrar shall conduct it,

at any time before a final determination by

the adjudication tribunal.

(4) A person conducting an investigation under

paragraph (1)(

b) or subparagraph (3)(c)(ii) may

(

a) require a respondent to

(

i) undergo an examination or assessment he or she

considers necessary and as arranged by the registrar or the council, and

(ii) permit the registrar or a member of the

council or a person appointed by the council to inspect and copy records of the

respondent and other documents relating to the subject matter of the

investigation; and

(

b) require another person to permit the registrar

or a member of the council or a person appointed by the council 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) Where the registrar, a member of the council

or a person appointed by the council 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 by the registrar, a member of the council or a person appointed by

the council.

(6) 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).

(7) Where the complaints authorization committee

recommends to the council

that a respondent's practice be suspended, restricted or investigated the

council may

(

a) decide not to act on the recommendation; or

(

b) suspend, restrict or investigate the

respondent's practice.

(8) 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.

(9) 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 college 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 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 in s pection,

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 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 council upon those conditions that may be considered

appropriate and, where the respondent's name appears on the register maintained

under this Act, strike the respondent's name from the register;

(

d) impose a fine not to exceed $10,000 to be paid

to the college;

(

e) order that the respondent pay the costs or a

part of the costs incurred by the college 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 council 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 overcome,

(

v) engage in continuing education programs,

(vi) complete a course of studies or obtain

supervised clinical experience, or both, to the satisfaction of the council 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 college 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

hearing 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 college 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 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 council upon those conditions that may be considered

appropriate and, where the respondent's name appears on the register maintained

under this Act, strike the respondent's name from the register;

(

d) impose a fine not to exceed $10,000 to be paid

to the college;

(

e) order that the respondent pay the costs or a

part of the costs incurred by the college 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 council 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 overcome,

(

v) engage in continuing education programs,

(vi) complete a course of studies or obtain

supervised clinical experience, or both, to the satisfaction of the council 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.

(4) The costs incurred by the college 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 and the

respondent and the respondent's employer.

(2) The registrar shall maintain a copy of a

decision or order filed under subsection (1) for a minimum of 10 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 a

summary of a decision where that practitioner was the respondent, prepared in

accordance with subsection (4).

(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 filing of the decision or order, where the decision or

order

(

a) suspends the respondent;

(

b) allows or directs the respondent to surrender

his or her licence;

(

c) restricts the respondents 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.

De-registration

and suspension

(1) Where

a respondent is struck off the register, his or her rights and privileges as a

licensed optometrist cease.

(2) Where a respondent is suspended, his or her

rights and privileges as a licensed optometrist cease for the period of suspension.

(3) Where conditions or restrictions have been

imposed upon a respondents ability to carry on his or her practice, his or her

rights and privileges as a licensed optometrist shall be limited to the extent

specified by the conditions or restrictions.

Failure to comply

(1) On

application by the college to the disciplinary panel, an adjudication tribunal

may make an order suspending the rights and privileges of a respondent where it

determines that the respondent has failed to comply with a decision or an order

under this Part.

(2) The parties to the application are the college

and the respondent.

(3) An order of an adjudication tribunal under

this

section may suspend the rights and privileges 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

as a result of a decision of the adjudication tribunal the respondent

(

a) has been struck from the register;

(

b) has had his or her rights and privileges

suspended; or

(

c) has had imposed upon him or her conditions or

restrictions on the manner in which he or she may carry on his or her practice,

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 complaints authorization committee may

refer a matter under subsection (3) to the adjudication tribunal that made the

original decision or order, or may constitute a new adjudication tribunal.

(5) The parties to a supplementary hearing under

this

section are the respondent and the college.

(6) 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 college

(1) Where

a person who was ordered to pay the costs of the college under paragraph 34(2)(

e) or 35(3)(

e) fails to pay in the time required, the council may suspend the

membership 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 the college and may be recovered by the college 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 college

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 judges 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 to Trial

Division

(1) The

college or the respondent may, within 30 days after receiving notice of a

decision or order of an adjudication tribunal under this Act, appeal the

decision or order 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.

PART V

QUALITY ASSURANCE

Quality assurance

program

(1) The

council shall establish and maintain a quality assurance program to promote

high standards of practice within the optometry profession.

(2) The quality assurance program shall include mandatory

continuing education and professional development and shall be designed to promote

(

a) continuing competence; and

(

b) continuing quality improvement.

Quality assurance

committee

(1) The

council may appoint a committee known as the quality assurance committee.

(2) The quality assurance committee shall

investigate a concern

(

a) on the referral of a quality assurance issue

(

i) the registrar, or

(ii) the complaints authorization committee; or

(

b) on its own accord.

(3) The quality assurance committee may

(

a) subpoena records, including patient records;

(

b) order an optometrist to undergo an evaluation,

assessment or examination;

(

c) order a review of an optometrist's practice,

including any consequential review of patient records;

(

d) order periodic or random audits of aspects of

an optometrist's practice; and

(

e) accept an agreement between the council and

the optometrist to give effect to matters which could be ordered by the quality

assurance committee.

(4) Where an optometrist fails to comply with an

order made by the quality assurance committee, that committee shall refer that

failure to comply as an allegation to the complaints authorization committee.

Assessment

(1) The

quality assurance committee may appoint persons licensed as optometrists under

this Act as assessors for the purposes of the quality assurance program.

(2) An assessor may, for the purposes of the

quality assurance program

(

a) enter, without notice and at reasonable times,

places where optometry is practised to make necessary inspections;

(

b) inspect that optometrist's records of care

administered to patients;

(

c) require from the optometrist information

required by the quality assurance committee or the assessor respecting the

assessment and care of patients by the optometrist, or his or her records of

care administered to patients; and

(

d) require that that optometrist confer with the

quality assurance committee.

(3) An optometrist whose standards of practice are

the subject of an assessment under the quality assurance program shall

cooperate fully with the quality assurance committee and assessors.

(4) An assessor may access patient records without

the consent of that patient.

(5) All records and specific information relating

to the quality assurance program or a review or recommendation under it are

confidential.

Report and compliance

(1) Upon

completion of an assessment an assessor shall submit a report of his or her

findings to the quality assurance committee and the committee shall review the

report and may

(

a) make no recommendation to the optometrist who

has been assessed; or

(

b) confer with the optometrist assessed and make

those remedial recommendations to him or her that the quality assurance committee

considers appropriate.

(2) The quality assurance committee may

(

a) direct the optometrist who has been assessed

to comply with recommendations made by the committee under subsection (1); and

(

b) direct that an optometrist be reassessed.

Costs

47. The

costs incurred by an optometrist in implementing remedial recommendations of

the quality assurance committee shall be paid by that optometrist and shall not

be a cost of the quality assurance committee, the council or the college.

Termination of

review

(1) Where

an assessor or a member of the quality assurance committee learns, in the

course of a review, that an optometrist may be guilty of conduct deserving of

sanction within the meaning of

section 26, the assessment shall be terminated,

the optometrist shall be advised, and the matter shall be referred to the

complaints authorization committee to be dealt with as a complaint.

(2) Notwithstanding subsection 45(5), an assessor

or a member of a quality assurance committee shall provide all information and

documents in its possession relating to the review to the complaints

authorization committee.

(3) An order of the quality assurance committee

issued before it refers a matter to the complaints authorization committee

under subsection (1) remains in effect notwithstanding the referral of the

matter to the complaints authorization committee.

Duty to report

(1) An

optometrist who has knowledge, from direct observation or objective evidence,

of conduct deserving of sanction of another optometrist shall report the known

facts to the registrar.

(2) A person who dissolves a partnership with an

optometrist based on direct knowledge of the optometrist's conduct deserving of

sanction shall report the known facts to the registrar.

(3) An action shall not be brought against an

optometrist, officer, partnership or association for the sole reason that the

person, officer, partnership or association complied with this section.

PART VI

GENERAL

Referral

50. A

practitioner shall refer to a medical practitioner registered under the laws of

the province a person consulting the practitioner where the practitioner has

reason to suspect the person has a condition that requires a medical opinion or

medical or surgical treatment.

Pharmaceuticals

51. A

practitioner shall not prescribe or administer pharmaceutical agents except in

accordance with a certificate issued under the regulations.

Use of trade name

(1) A

practitioner shall not use a trade name or corporate name in connection with

the practice of optometry, except as permitted in

Part III.

(2) Subsection (1) does not prevent a practitioner

from practising optometry in a partnership with one or more practitioners under

a firm name that includes the surname of one or more of the practitioners.

Use of certain

titles

53. A

person, other than a person holding a valid and existing licence under this

Act, shall not use the title "Optometrist" or a word, abbreviation,

or letters or signs having a similar meaning.

Action prohibited

54. An

action for damages shall not lie against the college, council, disciplinary

panel, adjudication tribunal or the individual members of those bodies, the

registrar, an assessor or an officer, employee or representative of the college

for

(

a) an act or failure to act, or a proceeding

initiated or carried out in good faith under this Act, or carrying out their

duties or obligations as an officer, employee or member under this Act; or

(

b) for a decision or order made or enforced in

good faith under this Act.

Offence

55. A

person who

(

a) is not registered in accordance with this Act,

and who, by himself or herself or by another person practises optometry or

holds himself or herself out as qualified or entitled to so practise;

(

b) knowingly helps another in the contravention

of this Act;

(

c) permits or allows a person in his or her

employ other than a registered optometrist to practise optometry;

(

d) obtains or attempts to obtain for himself or

herself registration in accordance with this Act by making a false or fraudulent

representation or declaration, either orally 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 $5,000 and in default of payment to

imprisonment for a term not exceeding 3 months or to both a fine and

imprisonment.

Proof

56. The

use by a person of test lenses, trial frames or other appliances for measuring

the human eye or testing the vision of the human eye is, in the absence of

evidence to the contrary, proof that the person is practising optometry.

Regulations

(1) The

council may, with the approval of the minister, make regulations

(

a) prescribing the academic qualifications and

examinations and other qualifications for the licensing of persons to practise

optometry;

(

b) prescribing the qualifications for a

practitioner to be permitted to prescribe and administer pharmaceutical agents

designated in the regulations and providing for the issuance of a certificate

to qualified practitioners to prescribe and administer those pharmaceutical

agents;

(

c) designating the pharmaceutical agents and

dosages that may be prescribed and administered by a practitioner holding a

certificate permitting him or her to prescribe and administer pharmaceutical

agents;

(

d) prescribing the qualifications for a

practitioner to be permitted to remove superficial foreign bodies from the

human eye and surrounding tissue;

(

e) providing for persons to discharge the duties

of checking the visual acuity of a person;

(

f) respecting the registration and licensing of

professional optometric corporations;

(

g) respecting mandatory continuing education

programs;

(

h) respecting the quality assurance program

referred to in subsection 43(1);

(

i) respecting alternative dispute resolution for

the purposes of

Part IV and the procedure for that resolution; and

(

j) prescribing time limits for events in the

disciplinary process in

Part IV, including time limits for

(

i) the filing of an allegation,

(ii) the resolving of an allegation by the registrar,

(iii) the conduct of an investigation under

section

30,

(iv) the consideration of an allegation by the

complaints authorization committee 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

subparagraph 30(3)(c)(ii),

(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.

(2) Notwithstanding paragraph (1)(j), the minister

may make regulations to prescribe time limits for events in the disciplinary

process in

Part IV where the council has not done so in a time period which the

minister considers reasonable.

Fees and forms

58. The

council may set fees and prescribe forms for the purpose and administration of

the Act.

PART VII

TRANSITION, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT

Transition

(1) The

directors elected to the Newfoundland

and Labrador Optometric Board are continued as directors of the council.

(2) The directors appointed to the Newfoundland and Labrador

Optometric Board are continued as directors of the council.

SNL2005 cD-25.1

Amdt.

(1) Paragraph 3(

a) of the Dispensing Opticians Act, 2005 is

amended by deleting the reference " Optometry

Act, 2004" and substituting the reference "Optometry Act, 2012".

(2) Section 36 of the Act is repealed and the

following substituted:

Effect of the Optometry

Act, 2012

36. The Optometry Act, 2012 does not apply to a

dispensing optician licensed under this Act who practises optical dispensing

within the meaning of this Act.

RSNL1990 cH-3 Amdt.

61. Subsection 174.1(1) of the Highway Traffic Act is amended by deleting the reference " Optometry Act, 2004" and

substituting the reference "Optometry

Act, 2012".

SNL2008 cP-7.01

Amdt.

62. Subparagraph 2(1)(j)(xi) of the Personal Health Information Act is repealed

and the following substituted:

(xi) Optometry

Act, 2012,

SNL1994 cP-12.1

Amdt.

(1) Subparagraph 2(p)(iii.1) of the Pharmacy Act is amended by deleting the

reference " Optometry Act, 2004"

and substituting the reference "Optometry

Act, 2012".

(2) Paragraph 3(1)(c.1) of the Act is amended by

deleting the reference " Optometry

Act, 2004" and substituting the reference "Optometry Act, 2012".

SNL2006 cP-12.01

Amdt.

64. Subparagraph 2(p)(iii) of the Pharmaceutical Services Act is amended

by deleting the reference " Optometry

Act, 2004" and substituting the reference "Optometry Act, 2012".

SNL2004 cO-7.01 Rep.

65. The Optometry

Act, 2004 is repealed.

Commencement

66. This Act comes into force on August 31, 2012.

William E. Parsons, Queen's Printer