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The Dental Association Amendment Act

This is an unofficial version.
If you need an official copy, contact Statutory Publications.

S.M. 1992, c. 39

The Dental Association Amendment Act

(Assented to June 24, 1992)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. D30 amended

1           The Dental Association Act is amended by this Act.

2           The heading "PRACTICE OF DENTISTRY" is added before section 2.

3           The heading "THE MANITOBA DENTAL ASSOCIATION" is added before section 3.

4           The heading "REGISTRATION AND LICENSING" is added before section 10.

5           Sections 24 to 30 are repealed and the following is substituted:

DISCIPLINE

Peer Review Committee

Peer review committee

24(1)       There shall be a peer review committee consisting of not less than seven persons appointed in accordance with this section.

Membership

24(2)       At least six members of the peer review committee shall be licensed members of the association appointed to the committee by the board and at least one member shall be a lay person who is not and has never been a dentist.

Lay member

24(3)       A lay member of the peer review committee shall be appointed by the minister for a two-year term.

Appointment of successor

24(4)       A lay member continues to hold office after the expiry of his or her term until the member is reappointed or a successor is appointed.

Roster of lay members

24(5)       In addition to a lay member appointed under subsection (3), the minister shall also appoint to the peer review committee a roster of not less than four persons, who are not and have never been dentists, who may be appointed as members of the complaints committee, the appeals committee or an inquiry panel.

Chairperson

24(6)       The board shall appoint one member of the peer review committee to be chairperson of the committee.

Complaints

Complaints committee

24.1        The chairperson of the peer review committee shall from time to time appoint not less than two members of that committee as a complaints committee.

Complaints

24.2(1)     Any person may make a complaint in writing to the registrar about the conduct of a licensed member of the association, and the complaint shall be dealt with in accordance with this Act.

Complaints against former members

24.2(2)     If, after the certificate of registration or licence of a dentist is suspended, cancelled or not renewed under this Act or any predecessor to this Act,

(a) a complaint is made about the former member; and

(b) the complaint relates to conduct occurring while the former member's registration or licence was in effect;

the complaint may be dealt with within five years following the date of suspension, cancellation or failure to renew as if the former member's registration or licence were still in effect.

Referral to complaints committee

24.3        The registrar shall refer the matter to the complaints committee if

(a) a complaint is made under section 24.2; or

(b) the registrar or the board considers a referral to be advisable.

Investigation

24.4(1)     On referral of a matter to the complaints committee, the complaints committee may direct that an investigation into the conduct of a member be held, and for that purpose may appoint a person to conduct the investigation and may engage legal counsel and employ other expert assistance.

Records and information

24.4(2)     A person conducting an investigation may require the investigated member

(a) to produce to the person any records in the possession of or under the control of the investigated member; and

(b) to attend at the investigation.

Failure to produce records

24.4(3)      The association may apply ex parte to the Court of Queen's Bench for an order

(a) directing the investigated member to produce to any person conducting an investigation any records in the member's possession or control, if it is shown that the investigated member failed to produce them when required by the person conducting the investigation; or

(b) directing any person to produce to a person conducting an investigation any records that are or may be relevant to the matter being investigated.

Investigation of other matters

24.4(4)     A person conducting an investigation may investigate any other matter related to the professional conduct or the skill in practice of the investigated member that arises in the course of the investigation.

Report to complaints committee

24.4(5)     The findings of a person conducting an investigation shall, on conclusion of the investigation, be reported to the complaints committee.

Serious complaints referred directly for inquiry

24.5        If, in the opinion of the registrar, a complaint is of a particularly serious and urgent nature, the registrar may refer the complaint, with or without further investigation, directly to the peer review chairperson who shall establish an inquiry panel under section 26.

Decision of complaints committee

25(1)       The complaints committee may, after reviewing a matter,

(a) direct that the matter be referred, in whole or in part, to the peer review chairperson who shall establish an inquiry panel under section 26;

(b) direct that the matter not be referred to the peer review chairperson;

(c) issue a formal written caution to the investigated member censuring or disapproving of the member's conduct;

(d) accept the voluntary surrender by a member of his or her licence to practise dentistry; or

(e) take such other action as it considers appropriate in the circumstances that is not inconsistent with this Act or the by-laws.

Notification of complaints committee decision

25(2)       The complaints committee shall notify the investigated member and the complainant in writing of the committee's decision under subsection (1) and the reasons for the decision.

Hearing not required

25(3)       Unless it is considering the issuance of a formal caution to the investigated member, the complaints committee is not required to hold a hearing or to afford to any person an opportunity to appear or to make oral submissions before making a decision under this section.

Issuance of formal caution

25.1(1)      A formal caution shall be issued under clause 25(1)(c) only after the complaints committee has met with the investigated member and only when no other action is taken by the complaints committee, and the issuance of a caution cannot be appealed.

Investigated member's request for referral to peer review chairperson

25.1(2)     On being advised of the complaint committee's decision to issue a formal caution under clause 25(1)(c), the investigated member may request the complaints committee to refer the matter to the peer review chairperson who shall establish an inquiry panel under section 26, and in that event the complaints committee shall not proceed with the issuance of the proposed caution.

Confidentiality of formal caution

25.1(3)     Except as otherwise provided in this Act or with the agreement of the investigated member, the issuance of a formal caution shall be kept confidential, except that the complaints committee may inform a complainant as to the disposal of the complaint.

Voluntary surrender of licence

25.2(1)     If the complaints committee accepts a voluntary surrender under clause 25(1)(d), it may direct the member to do one or more of the following:

(a) to obtain counselling or treatment;

(b) to complete a specified course of studies;

(c) to obtain supervised practical clinical experience;

to the satisfaction of such person or committee as the complaints committee may determine.

Conditions

25.2(2)     A voluntary surrender remains in effect until the complaints committee is satisfied that the conduct or complaint that was the subject of the investigation has been resolved, at which time the complaints committee may impose conditions on the member's entitlement to engage in the practice of dentistry, including conditions that the member

(a) practise under supervision;

(b) not engage in sole practice;

(c) permit periodic inspections of the member's practice;

(d) permit periodic audits of records; or

(e) report to the complaints committee or the registrar on specific matters;

and may order the member to pay any costs arising from such conditions.

Referral to peer review chairperson

25.2(3)     Notwithstanding the acceptance of a voluntary surrender by the complaints committee, the complaints committee may at any time refer the conduct or complaint that it has reviewed to the peer review chairperson for formal inquiry.

Appeals committee

25.3(1)     The peer review chairperson shall from time to time from among the members of the peer review committee appoint an appeals committee consisting of not less than three members, and shall name one of them as chairperson.

Members not to have taken part in complaints committee review

25.3(2)     No person who was a member of the complaints committee reviewing a matter under investigation shall be a member of the appeals committee hearing the appeal of that matter.

Appeal to appeals committee

25.4(1)     If the complaints committee acts in accordance with clauses 25(1)(b) or (e), the complainant may appeal that decision to the appeals committee.

Notification of appeal

25.4(2)     An appeal under subsection (1) shall be made in writing to the chairperson of the complaints committee, giving the reasons for the request to appeal, and shall be mailed within 30 days of the date of notification of the complaints committee decision under subsection 25(2).

Power on appeal

25.4(3)     On an appeal under subsection (1), the appeals committee shall do one or more of the following:

(a) make any decision that in its opinion ought to have been made by the complaints committee;

(b) quash, vary or confirm the decision of the complaints committee;

(c) refer the matter back to the complaints committee for further consideration in accordance with any direction that the appeals committee may make.

Notification of decision

25.4(4)     The appeals committee shall notify the investigated member and the complainant in writing of the committee's decision and the reasons for its decision.

Hearing not required

25.4(5)     The appeals committee is not required to hold a hearing or to afford to any person an opportunity to appear or to make oral submissions before making a decision under this section, but the committee shall give the complainant an opportunity to make a written submission.

Suspension pending decision

25.5(1)     Notwithstanding anything in this Act, the board may direct the registrar to suspend one or both of a member's certificate of registration and licence pending the outcome of proceedings under this Act when there is a question of serious risk to the public.

Notice of suspension

25.5(2)     On receiving a direction under subsection (1), the registrar shall serve a notice of the suspension on the member.

Service of notice of suspension

25.5(3)     A notice under this section may be served personally or may be sent by registered mail to the member's address contained in the records of the association, and a notice sent by registered mail shall be deemed to be served five days after the day it is sent.

Proof of service

25.5(4)     Proof of service of a notice under this section must be made by affidavit or statutory declaration.

Application of stay

25.5(5)     The investigated member may, by filing an application with the court and serving a copy on the registrar, apply for an order of the court staying a direction of the board under subsection (1).

Formal Inquiry

Establishment of inquiry panel

26(1)       When a matter is referred to the chairperson of the peer review committee

(a) by the registrar under section 24.5;

(b) by the complaints committee under clause 25(1)(a) or subsection 25.1(2) or 25.2(3); or

(c) by the appeals committee under subsection 25.4(3);

the chairperson of the peer review committee shall, within 30 days of the referral, establish an inquiry panel consisting of not less than three members of the peer review committee, one of whom shall be a lay person.

Lay member

26(2)       The lay member appointed under subsection (1) shall be a person named to the roster established under subsection 24(5).

Chairperson

26(3)       The inquiry panel shall elect a chairperson from among its members.

Members not to have taken part in investigation

26(4)       No person who investigated the member's conduct or who participated in a review of the matter as a member of the complaints committee or the appeals committee shall be a member of the inquiry panel concerning the same matter.

Procedure

26.1        The inquiry panel shall determine its own practice and procedure.

Hearing by inquiry panel

26.2(1)     When an inquiry panel is established, it shall hold a hearing.

Date of hearing

26.2(2)     The hearing shall commence on a date within 60 days after the date on which the matter is referred, unless the investigated member consents in writing to a later date.

Notice of hearing

26.2(3)     At least 14 days before the date of the hearing, the registrar shall serve on the investigated member and the complainant a notice of hearing stating the date, time and place at which the inquiry panel will hold a hearing and identifying in general terms the complaint or matter in respect of which the hearing will be held.

Service of notice of hearing

26.2(4)     A notice served under this section may be served personally or may be sent by registered mail

(a) to the member at the member's address contained in the records of the association; and

(b) to the complainant at any address provided to the association;

and a notice sent by registered mail shall be deemed to be served five days after the day it is sent.

Proof of service

26.2(5)     Proof of the service of a notice under this section shall be made by affidavit or statutory declaration.

Inquiry panel and registrar may have counsel

26.2(6)     The inquiry panel and the registrar may each have counsel to assist them at a hearing.

Right to appear and be represented

26.2(7)     The investigated member may appear and be represented by counsel, at his or her expense, at a hearing before the inquiry panel.

Examination of documentary evidence

26.2(8)     The investigated member shall be afforded an opportunity to examine before the hearing any written or documentary evidence that will be produced or any report, the contents of which will be given in evidence at the hearing.

Recording of evidence

26.2(9)     The oral evidence given at a hearing of the inquiry panel shall be recorded.

Adjournments

26.2(10)    The chairperson of the inquiry panel may adjourn a hearing from time to time.

Hearing open to public

26.3(1)     Except as otherwise provided in this section, a hearing of the inquiry panel shall be open to the public, but there shall be no reporting in the media of anything that would identify the investigated member, including the member's name, the business name of the member's practice or partnership, or the location of practice, unless and until the inquiry panel makes any of the findings under section 27.5.

Request for hearing in private

26.3(2)     The investigated member or any person referring a matter for formal inquiry under section 24.5, clause 25(1)(a) or subsection 25.1(2), 25.2(3) or 25.4(3) may request that the hearing or any part of the hearing be held in private.

Hearing in private

26.3(3)     When a request is made under subsection (2), the formal inquiry committee may exclude the public from the hearing or any part of the hearing, or may direct that the investigated member or any witness be identified only by initials, if the committee is satisfied that

(a) matters involving public security may be disclosed;

(b) financial or personal or other matters may be disclosed at the hearing that are of such a nature that the desirability of avoiding public disclosure of those matters in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that meetings be open to the public;

(c) a person involved in a criminal proceeding or in a civil suit or proceeding may be prejudiced; or

(d) the safety of a person may be jeopardized.

Investigation of other matters

26.4        The inquiry panel may investigate and hear any other matter concerning the professional conduct or the skill in practice of an investigated member that arises in the course of its proceedings, but in that event the panel shall declare its intention to investigate the further matter and shall permit the investigated member sufficient opportunity to prepare a response to the further matter.

Evidence

26.5(1)     At a hearing of the inquiry panel, the oral evidence of witnesses shall be taken on oath or affirmation and there shall be a full right to cross examine witnesses and call evidence in defence and reply.

Power to administer oaths

26.5(2)     For the purpose of an investigation or hearing under this Act, the chairperson of the inquiry panel has power to administer oaths and affirmations.

Witnesses

27          Any person other than the investigated member who, in the opinion of the inquiry panel, has knowledge of the complaint or matter being investigated is a compellable witness in any proceeding before the inquiry panel.

Proof of conviction

27.1        For the purposes of proceedings under this Act, a certified copy under the seal of the Court of Queen's Bench or signed by the convicting justice or the Clerk of a Provincial Judges Court, of the conviction of a person for any crime or offence under the Criminal Code (Canada) or under any other Act or regulation is conclusive evidence that the person has committed the crime or offence stated, unless it is shown that the conviction has been quashed or set aside.

Notice to attend and produce records

27.2(1)     The attendance of witnesses before the inquiry panel and the production of records may be enforced by a notice issued by the registrar requiring the witness to attend and stating the date, time and place at which the witness is to attend and the records, if any, that the witness is required to produce.

Registrar shall provide notices

27.2(2)     On the written request of the investigated member or the member's counsel or agent, the registrar shall provide any notices that the member requires for the attendance of witnesses or the production of records.

Method of service of notices

27.2(3)      A notice served on a witness shall be served personally.

Proof of service

27.2(4)     Proof of the service of a notice under this section shall be made by affidavit or statutory declaration.

Witness fees

27.2(5)     A witness who has been served with a notice to attend or a notice for production under this section is entitled to be paid the same fees in the same manner as are payable to a witness in an action in the Court of Queen's Bench.

Failure to attend or give evidence

27.3        Proceedings for civil contempt of court may be brought against a witness

(a) who fails to attend before the inquiry panel in compliance with a notice to attend;

(b) who fails to produce any records in compliance with a notice to produce them; or

(c) who refuses to be sworn or to affirm or who refuses to answer any question he or she is directed to answer by the inquiry panel.

Hearing in absence of investigated member

27.4        The inquiry panel may, on proof of service of the notice of hearing on the investigated member,

(a) proceed with the hearing in the absence of the investigated member or the member's agent; and

(b) act, decide or report on the matter being heard in the same way as if the investigated member were in attendance.

Findings of inquiry panel

27.5        If, at the conclusion of a hearing, the inquiry panel finds that the investigated member

(a) is guilty of professional misconduct;

(b) is guilty of conduct unbecoming a member;

(c) has contravened this Act or the by-laws or the code of ethics adopted under this Act;

(d) has contravened an Act of the Parliament of Canada or of the Legislature, having implications for the individual's professional responsibility or fitness to practise dentistry;

(e) has displayed a lack of knowledge of or lack of skill or judgment in the practice of dentistry; or

(f) has demonstrated that he or she is incapable or unfit to practise dentistry or is suffering from an ailment that might, if allowed to continue, constitute a danger to the public;

it shall deal with the investigated member in accordance with this Act.

Orders of inquiry panel

28(1)       If the inquiry panel makes any of the findings described in section 27.5, the panel may make any one or more of the following orders:

(a) reprimand the member;

(b) suspend the member's licence for such period of time as the inquiry panel determines is appropriate;

(c) suspend the member's licence until the member has completed a specified course of studies or obtained supervised practical clinical experience, or both, to the satisfaction of such person or committee as the inquiry panel may determine;

(d) suspend the member's licence until the member has obtained treatment or counselling and has demonstrated that a disability, addiction or problem can be or has been overcome to the satisfaction of such person or committee as the inquiry panel may determine;

(e) impose conditions on the member's entitlement to engage in the practice of dentistry, including conditions that the member

(i) limit his or her practice,

(ii) practise under supervision,

(iii) not engage in sole practice,

(iv) permit periodic inspections of the member's practice,

(v) permit periodic audits of records,

(vi) report to the inquiry panel, the registrar or the board on specific matters,

(vii) complete a particular course of studies or obtain supervised practical clinical experience, or both, to the satisfaction of such person or committee as the inquiry panel may determine, or

(viii) obtain treatment for a disability or addiction or undertake counselling until such time as the person can demonstrate that a disability, addiction or problem can be or has been overcome to the satisfaction of such person or committee as the inquiry panel may determine,

and may order the member to pay any cost arising from such conditions;

(f) direct the member to waive money owed or refund money paid to him or her that, in the opinion of the inquiry panel, was unjustified for any reason;

(g) cancel one or both of the member's certificate of registration or licence.

Cancellation or suspension of registration or licence

28(2)       If the certificate of registration or licence of a member is suspended or cancelled, the member shall not practise dentistry during the period of the suspension or cancellation.

Formal cautions brought to inquiry panel's attention

28(3)       In order to assist the inquiry panel in determining an appropriate order, the panel may be advised of any formal cautions previously given to the member under subsection 25(1) and the circumstances under which they were issued.

Costs and fines

28.1(1)     The inquiry panel may, in addition to or instead of dealing with the conduct of an investigated member in accordance with section 28, order that the investigated member pay

(a) all or part of the costs of the investigation, hearings and appeal;

(b) a fine not exceeding $10,000., payable to the association;

(c) both the costs under clause (a) and the fine under clause (b);

within the time set by the order.

Failure to pay costs and fines by time ordered

28.1(2)     If the member ordered to pay a fine, costs or both under subsection (1) fails to pay within the time ordered, the board may suspend the member's licence or registration until the member has paid the fine or costs.

Filing of order to pay costs

28.1(3)     The association may file an order under subsection (1) in the court, and on the order being filed it may be enforced in the same manner as a judgment of the court.

Written decision and formal order

28.2(1)     Following completion of the hearing, the inquiry panel shall give its decision and the reasons for it in writing, and shall also make a formal order embodying the decision.

Decision and order forwarded to registrar

28.2(2)     The inquiry panel shall forward to the registrar

(a) the decision and order given under subsection (1); and

(b) the record of the inquiry panel's proceedings, consisting of all evidence presented before it, including all exhibits and documents.

Service of decision and order

28.2(3)     The registrar shall, on receiving the decision and order, serve a copy of the decision and order on the member and the complainant.

Method of service of decision and order

28.2(4)     A copy of the decision and order served under this section may be served personally or may be sent by registered mail

(a) to the member at the member's address contained in the records of the association; and

(b) to the complainant at any address provided to the association;

and a decision and order notice sent by registered mail shall be deemed to be served five days after the day it is sent.

Proof of service

28.2(5)      Proof of the service of a notice under this section shall be made by affidavit or statutory declaration.

Copies of transcript

28.2(6)     The investigated member may examine the record of the proceedings before the inquiry panel, and is entitled to receive, on payment of the cost of providing it, a transcript of the oral evidence given before the inquiry panel.

Appeal to board

Appeal to board

28.3(1)     An investigated member or the registrar may, by notice in writing to the president of the association within 30 days after receipt of a decision of the inquiry panel, appeal the decision of the inquiry panel to the board, specifying the reasons for appeal.

Hearing

28.3(2)     The board shall schedule a hearing as soon as practicable after receipt of a notice of appeal under subsection (1).

Notice of hearing

28.3(3)     A member who appeals a decision of the inquiry panel under this section

(a) shall be notified in writing by the board of the date, place and time of the appeal; and

(b) is entitled to appear with counsel, at his or her expense, and make representations to the board at the appeal.

Method of service of notice

28.3(4)     A notice served under this section may be served personally or may be sent by registered mail to the member's address appearing in the records of the association, and a notice sent by registered mail shall be deemed to be served five days after the day it is sent.

Proof of service

28.3(5)     Proof of the service of a notice under this section shall be made by affidavit or statutory declaration.

Members not to have taken part in investigation or hearing

28.3(6)     Any member of the board who has taken part in the investigation or proceedings of the complaints committee, the appeal committee or the inquiry panel shall not participate in or vote on a decision under section 28.4.

Board to be provided with transcript

28.3(7)     In an appeal of a decision of the inquiry panel under this section, the board shall be provided with a transcript of the evidence taken by the inquiry panel and any other relevant material that was before the inquiry panel.

Powers of board on appeal

28.4        The board on hearing the appeal may

(a) make any finding or order that in its opinion ought to have been made;

(b) quash, vary or confirm the decision of the inquiry panel or any part of it; or

(c) refer the matter back to the inquiry panel for further consideration in accordance with any direction of the board;

and may make such order as to costs it considers appropriate.

Written decision and order

28.5(1)     Following completion of the hearing, the board shall give its decision and reasons therefor in writing, and shall also make a formal order embodying the decision.

Decision and order forwarded to registrar

28.5(2)     The board shall forward to the registrar

(a) the decision and order given under subsection (1); and

(b) the record of the proceedings of the board, consisting of all evidence presented before it, including all exhibits and documents.

Service of decision and order

28.5(3)     The registrar shall, on receiving the decision and order, serve a copy of the decision and order on the investigated member.

Method of service of decision and order

28.5(4)     A copy of the decision and order served under this section may be served personally or may be sent by registered mail to the member's address appearing in the records of the association, and a decision and order served by mail shall be deemed to be served five days after the day it is sent.

Proof of service

28.5(5)     Proof of the service of a notice under this section shall be made by affidavit or statutory declaration.

Copies of transcript

28.5(6)     The investigated member may examine the record of the proceedings before the board, and is entitled to receive, on payment of the cost of providing it, a transcript of the oral evidence given before the board.

Publication of decision

29          The association may, after the expiration of any appeal period, publish

(a) the name of a member in respect of whom an order is made under section 28, 28.1 or 28.4; and

(b) the circumstance relevant to the findings and order of the inquiry panel or the board.

Stay pending appeal to Court of Appeal

29.1        The decision of the board remains in effect pending an appeal to the Court of Appeal unless the Court, on application, stays the decision pending the appeal.

Appeal to Court of Appeal

Appeal to Court of Appeal

29.2(1)     An investigated member may appeal to the Court of Appeal any finding or order made by the board under section 28.4.

Commencement of appeal

29.2(2)     An appeal must be commenced

(a) by filing a notice of appeal with the Registrar of the Court of Appeal, together with a certificate stating that at least three copies of a transcript of any testimony given before the inquiry panel and the board have been ordered and will be available for the appeal; and

(b) by serving a copy of the notice of appeal on the association;

within 30 days after the date on which the decision of the board is served on the member.

Appeal on the record

29.3        An appeal to the Court of Appeal shall be founded on the record of the hearing before the inquiry panel and the appeal to the board and the exhibits thereto.

Powers of Court on appeal

29.4        The Court of Appeal on hearing the appeal may

(a) make any finding or order that in its opinion ought to have been made;

(b) quash, vary or confirm the decision of the board or any part of it; or

(c) refer the matter back to the board for further consideration in accordance with any direction of the Court;

and may make such order as to costs it deems appropriate.

Reinstatement

Reinstatement

29.5        The board may, upon application by a person whose certificate of registration or licence has been cancelled, direct the registrar to reinstate the person's name in the applicable register subject to such conditions as the board may prescribe, and may order the person to pay any costs arising from such conditions.

Protection from liability

30          No action lies against the association, the board, the registrar, a person conducting a preliminary investigation, a member of a committee or board established under this Act or by-laws or any employee, officer or person acting on the instructions of any of them, for anything done by the person in good faith in the performance or intended exercise of any power under this Act or by-laws or for any neglect or default in the performance or exercise in good faith of such a duty or power.

6           The heading "GENERAL PROVISIONS" is added before section 31.

7           A complaint made or discipline proceedings that were commenced but not concluded before the coming into force of this Act shall be concluded under the existing Act as though this Act had not come into force.

8           A complaint made after the coming into force of this Act that relates to conduct all or part of which occurs before the coming into force of this Act shall be dealt with under this Act.

9           The by-laws of the association in force on the coming into force of this Act shall be the by-laws of the association until amended, altered or repealed under this Act.

Coming into force

10          This Act comes into force on a day fixed by proclamation.