The Incapacity Process

The fitness to practice provisions of the Regulated Health Professions Act, 1991 (RHPA) address situations where a registered massage therapist (RMT/MT) may be compromising client care as a result of incapacity. The incapacity process deals with people who have an illness or a condition that has the potential to interfere with practice.

Incapacity proceedings differ from disciplinary proceedings. Incapacity hearings focus on whether measures need to be in place to protect the public from an RMT’s illness or condition. A finding of incapacity usually results in rehabilitative rather than punitive measures.

Initiating Incapacity Inquiries

A Panel of the Inquiries, Complaints and Reports Committee (ICRC) or the Registrar may initiate incapacity inquiries after considering information that has been provided to them, where the information indicates that the RMT may be incapacitated and that inquiries into an RMT’s capacity are warranted. These inquiries are made by another Panel of the ICRC. The RMT is advised of the concerns that have been identified and the fact that a Panel has been appointed to explore these concerns. The RMT is provided with an opportunity to respond.

The Panel’s Inquiries

The ICRC Panel makes inquiries into the RMT’s illness. The Panel does not determine whether the RMT is incapacitated. The Panel may request information from the RMT, meet with the RMT, take statements from employers, colleagues, witnesses and/or clients, and/or obtain a specialist report, health records and other relevant health information.

The Panel may also require the RMT to undergo a physical or mental examination. An RMT who refuses to submit to the examination may have their Certificate of Registration suspended until they attend the appointment. Once the Panel finishes making its inquiries, the RMT will receive a copy of all the information obtained, which may include any medical or psychological evidence obtained during the inquiries. The RMT is then provided with an opportunity to submit a written response, which will be considered by the Panel before it makes a decision.

Resolution

The Panel will consider all information obtained during the inquiries and determine what action, if any, should be taken. The Panel may decide to refer the matter to the Fitness to Practice Committee for a hearing. Before making a referral, the ICRC could seek an informal resolution with the RMT. A negotiated resolution would balance the interest of the RMT with that of public protection. Possible resolutions could include one or more of the following:

• Requiring the RMT to participate in a treatment program;
• Obtaining reports from the treatment program and/or treatment providers;
• Monitoring of the RMT’s practice.

If the Panel believes that an RMT’s illness is exposing or is likely to expose clients to harm or injury, it may also issue an interim order directing the Registrar to suspend or impose terms, conditions or limitations on the RMT’s Certificate of Registration, pending the outcome of a hearing. In such cases, the RMT must first be given notice of the proposed order and the opportunity to respond. Once the order is in effect, the onus is on the College to deal with the case as quickly as possible.