A panel of the Inquiries, Complaints and Reports Committee (ICRC) or the Registrar may initiate incapacity proceedings after considering information that has been provided to them, where the information reveals that the Massage Therapist may be incapacitated and that inquiries into a Massage Therapist’s capacity are warranted. These inquiries are made by another panel of the ICRC. The Massage Therapist is advised of the concerns that have been identified and the fact that a panel has been appointed to explore these concerns. The Massage Therapist would be provided with the opportunity to make submissions at this point.

The Panel acts as an impartial fact-finder. It does not determine whether the Massage Therapist is incapacitated. The Panel may request information from the Massage Therapist, meet with the Massage Therapist, take statements from employers, colleagues, witnesses and/or clients and/or obtain a specialist report, hospital charts and other relevant health information.

The panel may also require the Massage Therapist to undergo a physical or mental examination. A Massage Therapist who refuses to submit to the examination may have his or her Certificate of Registration suspended until they attend the appointment. Once the panel has concluded making its inquiries, the Massage Therapist will receive a copy of all the information obtained which may include any medical or psychological evidence obtained during the course of the inquiries. The Massage Therapist will then be provided with an opportunity to submit a written response, which will be considered by the panel before it makes a decision.

The Panel will consider all of the 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 Practise Committee for a hearing. Before making a referral, the ICRC could seek an informal resolution with the Massage Therapist. A negotiated resolution could balance the interest of the Massage Therapist as well as ensure the public interest is protected. Possible resolutions could include one or more of the following:

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

If the Panel believes that a Massage Therapist’s illness is exposing or 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 therapist’s Certificate of Registration, pending the outcome of a hearing. In such cases, the Massage Therapist must first be given notice of the proposed order and the opportunity to make a written submission. Once the order is in effect, the onus is on the College to deal with the case as quickly as possible.

Where recommended by the panel of the ICRC, the Fitness to Practise Committee is responsible for holding a hearing to determine the capacity or “fitness” of a Massage Therapist to practise the profession. Hearings are conducted by panels composed of at least three people, one of whom must be a public appointee of the College Council.

The burden of proving that the Massage Therapist is incapacitated rests with the College. If a Massage Therapist is found to be incapacitated, the Fitness to Practise panel may:

• Revoke the Massage Therapist’s Certificate of Registration;
• Suspend the Massage Therapist’s Certificate of Registration (generally until the Massage Therapist has demonstrated to the College’s satisfaction that he or she has recovered);
• Impose terms, conditions or limitations on the Massage Therapist’s Certificate of Registration for a specified or indefinite period of time.

The panel may also specify criteria that must be satisfied for the removal of terms, conditions or limitations or for the suspension to be lifted.

Unlike disciplinary hearings, a fitness to practise hearing will only be open to the public if the RMT involved makes a written request in advance to the Registrar. Before agreeing to an open hearing, the panel must be satisfied that any negative consequences of revealing the information will not outweigh the benefits of an open hearing.

The public is entitled to know the results of an incapacity proceeding in which a Massage Therapist’s Certificate of Registration was revoked or suspended, or had terms, limitations or conditions imposed on it. This information is made available on the College’s Public Register.

The Massage Therapist may appeal a decision of the Fitness to Practise Committee to the Divisional Court. Despite any appeal, an order or decision made by the panel or Committee will take effect immediately.

For further information concerning the Fitness to Practise process, please contact: professionalconduct@cmto.com