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C.C.S.M. c. O70
The Optometry Act
|Table of Contents||Bilingual (PDF)||Regulations|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"association" means the Manitoba Association of Optometrists; (« Association »)
"council" means the council of the association; (« Conseil »)
"court" means the Court of King's Bench; (« tribunal »)
"investigated member" means a registered member or former member who is subject to a complaint under Part 5; (« membre visé par l'enquête »)
"lay person" means a person who
(a) is not an employee of the government, or an employee of any agency of the Crown, and
(b) is not or was not at any time registered under this Act or under any Act governing an allied health discipline; (« profane »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« ministre »)
"optometric drug licence" means a licence authorizing a registered member to prescribe and administer drugs for the diagnosis or treatment of diseases and disorders of the human visual system; (« permis d'utilisation de médicaments optométriques »)
"permit" means a permit issued by the registrar to a corporation authorizing it to carry on the practice of optometry during the period specified in the permit; (« licence »)
"professional corporation" means a corporation holding a valid permit; (« société professionnelle »)
"register" means the register of registered members established under this Act; (« registre »)
"registered member" means an individual whose name is entered in the register; (« membre inscrit »)
"registrar" means the registrar appointed under subsection 6(1); (« registraire »)
"voting share", in a relation to a corporation, means a share of its capital stock that entitles the holder to vote in any election of the corporation's directors; (« action avec droit de vote »)
"voting shareholder", in relation to a corporation, means a person who owns a voting share of the corporation or is a voting shareholder of another corporation that owns a voting share of the corporation. (« actionnaire avec droit de vote »)
The objects of this Act are to create an association for the regulation of the practice of optometry within the province and to prevent incompetent persons from practising optometry.
PRACTICE OF OPTOMETRY
The practice of optometry means the examination, diagnosis, treatment, management and prevention of diseases and disorders of the human visual system, including the human eye and its associated structures, and the detection of related systemic conditions.
In accordance with the requirements of this Act and the regulations, a registered member may do any of the following in the course of engaging in the practice of optometry:
(a) prescribe or administer drugs designated in the regulations;
(b) remove superficial foreign bodies from the human eye or its adnexa;
(c) order and receive reports of screening and diagnostic tests designated in the regulations.
Without limiting the generality of subsection 2.1(1), any person not exempted from the provisions of this Act shall be deemed to be practising optometry if
(a) the person engages in the examining, refracting, testing, measuring, diagnosing, treating, correcting, developing or improving the human visual system by the employment of any means including the use of any computerized or automated measuring device, or the fitting and adaptation of lenses or frames for the aid thereof; or
(b) by advertisement, sign or statement of any kind written or oral, the person alleges, implies or states that he or she is, or holds himself or herself out as being, qualified, able or willing to examine, diagnose, advise upon, prescribe for, prevent or treat with the intent to induce people to patronize him or her for the examination, diagnosis, improvement or correction of the human vision system; or
(c) the person employs, in the examination, diagnosis or treatment of another, any means, including the prescribing or use of pharmaceutical agents, for the measurement, improvement or development of any or all functions of human vision or ocular health, the assessment of the powers and range of human vision, or the determination of the accommodative or refractive status of human vision or the scope of its functions in general; or
(d) the person sells or offers for sale, otherwise than on prescription, spectacles or contact lenses containing any lens of spherical, prismatic, or cylindrical power, for the aid of human vision, or the fitting or adaptation of contact lenses to the human eye; or
(e) the person prescribes or alters the prescription for lenses, including contact lenses, or prescribes or directs the use of any optical device in connection with ocular exercises, orthoptics, vision therapy of other physical means to correct defects or adjust human vision.
The Manitoba Optometric Society is continued as a body corporate under the name "Manitoba Association of Optometrists".
No expenses of the association are a charge against the Consolidated Fund.
All moneys received from fees, penalties, and dues shall be placed in a bank or invested in securities that are a lawful investment for a trustee under The Trustee Act and constitute a fund for the use of the association.
There shall be a council of the association made up of eight registered members and one lay person.
The members of the council who are registered members shall be elected to office in accordance with the by-laws of the association; and the lay member shall be appointed by the Lieutenant Governor in Council.
The elected members of the council shall be residents of the province engaged in the active practice of optometry for at least two years immediately preceding the date of their election as members of council.
Each member of council shall hold office for a term of three years and thereafter until his successor is elected or appointed, as the case may be.
Where for any reason there occurs a vacancy on council, the vacancy shall be filled for the unexpired term only.
The council shall elect from its members, a chairman, who shall be the president of the association, vice-presidents, a secretary and treasurer, or secretary-treasurer, a registrar, and such other officers as may be required.
The council shall meet at least twice in each year, and at such other times as it may deem necessary, and at such places as it may determine.
A majority of the members of council constitute a quorum thereof.
REGULATORY ADVISORY COMMITTEE
The council must establish, in accordance with the regulations, a committee to be known as the "regulatory advisory committee".
In addition to any other responsibilities that may be prescribed for it by regulation, the regulatory advisory committee must give recommendations to the council about the making of regulations under clauses 7(1)(d) and (d.1).
The council, subject to the approval of the Lieutenant Governor in Council, may make regulations, not inconsistent with the provisions of this Act
(a) respecting the government and discipline of the registered members;
(b) respecting the qualifications required of candidates for registration as a member, including the designation of educational institutions whose programs for educating optometrists meet with the approval of the council;
(b.1) providing for an appeal to the council from a decision by the board of examiners not to approve a candidate's application for registration as a member, or to approve it subject to conditions;
(c) specifying the procedure for licensure and re-licensure of members;
(d) for the purpose of clause 2.1(2)(a), designating drugs or classes of drugs that a member may prescribe or administer;
(d.1) for the purpose of clause 2.1(2)(c), designating screening and diagnostic tests that a member may order or about which a member may receive reports;
(e) prescribing standards of continuing education that may be required of members as a prerequisite for the issuance of an annual registration for the practice of optometry;
(f) respecting the temporary registration to enable clinicians from educational institutions to be registered under the Act;
(f.1) for the purpose of section 6.1, respecting the establishment, membership and responsibilities of the regulatory advisory committee;
(g) specifying those schools that are considered to be accredited schools of optometry for the purpose of clause 12(1)(a);
(h) prescribing or adopting a course of studies in general and ocular pharmacology as it applies to the practice of optometry;
(i) respecting the requirements for obtaining an optometric drug licence;
(j) permitting a corporation or class of corporations, other than a professional corporation, to carry on the practice of optometry.
The council may make rules governing its procedure and the day to day administration of the affairs of the association.
The council shall appoint a board of examiners, one of whom shall be the registrar, for the purpose of conducting the examinations of the association and passing upon the qualifications of applicants for admission thereto; and the board may consist in whole or in part of members of the council.
Notwithstanding subsection (1), the Lieutenant Governor in Council shall appoint a lay person as a member of the examining board for such term as may be fixed by the Order in Council.
The council may, for the purpose of enabling a registered member who fails to meet the requirements of clause 12(2)(a) to qualify for an optometric drug licence, arrange to provide a course consistent with a course prescribed or adopted in a regulation made under clause 7(1)(h).
The association may make by-laws, not inconsistent with this Act, for
(a) the setting and holding of examinations for licensure, including those which may be established under a central examining board for the purpose of inter-jurisdictional standardization;
(b) the management of its property;
(c) all such purposes as may be necessary for the operation and management of the affairs of the association;
(d) the remuneration, if any, to be paid to the members of the board of examiners or the members of the council or both;
(e) the election of members of the council;
(f) the establishment of standards to govern the advertisement by registered members of optometric services provided by them;
(g) defining professional misconduct and conflict of interest for the purposes of this Act;
(h) the establishment of such committees and their procedure as may be required and prescribing the duties and responsibilities of those committees;
(i) the establishment or adoption, or both, of rules of ethics and professional standards and guidelines governing the practice of optometry;
(j) the prescribing of fees and dues to be paid by a person
(i) applying for registration as a member, or the renewal of registration, under this Act,
(ii) for an examination under section 11,
(iii) applying for an optometric drug licence, or the renewal of a licence, under section 12, or
(iv) applying for a permit, or the renewal of a permit, under section 17.2;
(k) any matter regarding the issuance, suspension, expiry or revocation of a certificate of registration, optometric drug licence or permit, including
(i) conditions that must be met before a certificate, licence or permit may be issued or renewed, or
(ii) conditions that may be imposed on a certificate, licence or permit;
(l) the establishment of the record of professional corporations required by section 17.15;
(m) the prescribing of the names of professional corporations.
The rules of ethics established and adopted pursuant to clause (1)(i) shall provide, inter alia, that every registered member shall observe the usual and customary procedures in consulting with or referring to a duly qualified medical practitioner a suspected medical problem where the consultation or referral is in the best interest of the patient.
A copy of each by-law shall be mailed to each registered member at his address as registered with the association within two weeks from the date it is passed; and does not take effect until the expiration of one month from the date it is passed.
Any by-law may be annulled by the Lieutenant Governor in Council for any reason he may deem just.
Every individual who has received a certificate of registration under any Act for which this Act is substituted, continues to be entitled to practise optometry under this Act, subject to this Act.
The board of examiners shall approve a candidate's application for registration as a registered member if, in making application for registration, the individual
(a) establishes that he or she meets the competency requirements approved by the council;
(b) establishes that his or her name has not been removed for cause from a register, in Canada or elsewhere, of persons authorized to engage in the practice of optometry;
(c) establishes that he or she has not been suspended as a result of professional misconduct by a regulatory authority governing the practice of optometry in Canada or elsewhere;
(d) pays the fees and dues provided for in the by-laws; and
(e) establishes that he or she has any other qualifications set out in the regulations.
Notwithstanding subsection (1), the board of examiners is not precluded from approving an individual for registration solely because the individual's registration as an optometrist has previously been revoked or suspended.
An approval may be made subject to any conditions that the board of examiners considers advisable.
The registrar shall enter in the register the name of an individual whose application for registration as a registered member is approved by the board and any other information as is required by this Act, the regulations or the by-laws.
Upon entry of the information in the register, the registrar shall issue a certificate of registration to the individual.
PUBLIC HEALTH EMERGENCY
Despite anything in this Act or the regulations, the board of examiners may waive any requirements for registration under this Act and the regulations to allow a person who is authorized to practise optometry in another jurisdiction in Canada or the United States to practise optometry in the province during an emergency, if the minister gives the board of examiners written notice that
(a) a public health emergency exists in all or part of the province; and
(b) he or she has determined, after consulting with public health officials and any other persons that the minister considers advisable, that the services of an optometrist from outside the province are required to assist in dealing with the emergency.
The board of examiners may exercise its authority under subsection (1) even if no emergency has been declared under an enactment of Manitoba or Canada.
If necessary to carry out the intent of this section, the board of examiners may authorize the registrar to issue a certificate of registration and to issue an optometric drug licence to a person allowed to practise under subsection (1), on such terms and conditions as the board of examiners may determine.
OPTOMETRIC DRUG LICENCE
No registered member shall prescribe or administer a drug unless
(a) the member holds an optometric drug licence issued under this Act; and
(b) the drug is designated in the regulations.
When a member applies for an optometric drug licence, the board of examiners must issue it if the member
(a) meets the requirements specified in the regulations for obtaining the licence; and
(b) pays any fees required by the by-laws.
GENERAL MEMBERSHIP PROVISIONS
No person shall, in Manitoba, make use of the title "optometrist" or describe himself as an "optometrist" unless he holds a valid and subsisting certificate of registration issued under this Act.
Every registered member practising optometry shall display their certificate of registration in a conspicuous place in the office or place where the member practises optometry.
The fee payable for an examination under section 11 is payable in advance to the treasurer or the secretary-treasurer of the association.
Every holder of a certificate of registration is a registered member of the association, and is liable to pay the fees and dues provided for in the by-laws.
Each member shall pay to the treasurer or secretary-treasurer the annual dues as provided in the by-laws, and upon payment shall receive an annual renewal of their certificate of registration. In the case of default in the payment of the dues, the member's certificate may be revoked by the council upon 30 days' notice being given to the member.
Subject to subsection (5), if a certificate is revoked under subsection (3), it may be reissued by the council upon payment of the dues, together with such sum as may be prescribed by by-laws as a penalty.
If an individual's certificate of registration has not been renewed for five or more consecutive years and the individual applies for reregistration as a member, they must apply to the council for registration and the council may issue a certificate of registration upon any conditions as it deems appropriate.
[Renumbered as section 4.1]
No registered member, or professional corporation on whose behalf a member provides an optometric service, may use or display the title "Doctor" or the abbreviation "Dr." in connection with the member's name unless the word "Optometry" or "Optometrist" is used or displayed immediately before or after the member's name.
A professional corporation established by one or more members may carry on the practice of optometry
(a) under the corporation's name; or
(b) as a member of a general partnership of professional corporations, or of professional corporations and registered members, under a name approved by the registrar in accordance with the by-laws.
A professional corporation may practise only through members who are authorized under this Act to practise optometry in Manitoba.
Subject to subsection (5), the registrar must issue a permit, or a renewal of a permit, to a corporation that wishes to carry on the practice of optometry if the registrar is satisfied that
(a) the corporation is incorporated, formed by amalgamation or continued under The Corporations Act, and is in good standing under that Act;
(b) the name of the corporation includes terms used to describe the practice of optometry, followed by the word "corporation", and is approved by the registrar in accordance with the by-laws;
(c) each voting share of the corporation is both legally and beneficially owned by
(i) a registered member, or
(ii) another professional corporation;
(d) each other share in the capital stock of the corporation is both legally and beneficially owned by a person who is
(i) a voting shareholder of the corporation,
(ii) a spouse, common-law partner or child, within the meaning of the Income Tax Act (Canada), of a voting shareholder of the corporation, or
(iii) a corporation, each share of the capital stock of which is legally and beneficially owned by a person referred to in subclause (i) or (ii);
(e) each director of the corporation is a registered member;
(f) the president of the corporation is a registered member;
(g) each person through whom the corporation will be carrying on the practice of optometry is a registered member who is authorized under this Act to practise optometry in Manitoba;
(h) the corporation has filed an application, in the form prescribed by by-law, and paid the fee prescribed by by-law for the permit or its renewal; and
(i) all other requirements prescribed by by-law for the issuance or renewal of the permit have been satisfied.
A permit may be issued or renewed subject to any conditions that the registrar considers advisable.
Unless it is cancelled, surrendered or suspended, a permit issued or renewed under subsection (1) is valid for the time period specified in the permit.
If an application for renewal is received by the registrar by the date set out in the by-laws, the permit continues in force until a decision on the application has been made.
(a) must refuse to issue a permit to, or renew the permit of, a corporation if the registrar is not satisfied by proper evidence that the corporation meets the requirements of subsection (1); and
(b) may refuse to issue a permit to, or renew the permit of, a corporation if
(i) a permit previously issued to the corporation has been cancelled or surrendered, or
(ii) a director, officer or shareholder of the corporation is or has been a director, officer or shareholder of a professional corporation whose permit has been cancelled or surrendered.
If the registrar refuses to issue or renew a permit under subsection (5), or issues or renews a permit subject to conditions, the registrar must notify the corporation in writing of the decision and the reasons for it, and of the corporation's right to appeal the decision.
A corporation that is refused a permit or renewal of a permit under subsection (5), or whose permit is issued or renewed subject to conditions, may appeal the registrar's decision to the council.
The appeal must be made by filing a written notice of appeal with the council within 30 days after the corporation receives notice of the decision. The notice of the appeal must specify the reasons for the appeal.
The council must either dismiss the appeal or make any decision the registrar could have made. The council must give the corporation written notice of its decision and the reasons for it.
A corporation may appeal the decision of the council to the court by filing a notice of appeal within 30 days after receiving notice of the council's decision. Subsection 17.10(2) applies to an appeal under this subsection.
Except as permitted by the regulations, no corporation, other than a professional corporation, shall carry on the practice of optometry.
A corporation whose name includes the words "optometric corporation" or any other phrase prescribed by by-law must not carry on any business in Manitoba unless it is a professional corporation.
A professional corporation must not carry on any business or activity other than the practice of optometry and the provision of other services directly associated with that practice.
Subsections (1) and (2) must not be construed so as to prohibit a professional corporation from investing its funds in real property, other than for development purposes, or in stocks, mutual funds, debt obligations, insurance, term deposits or similar investments.
No act of a professional corporation, including a transfer of property to or by the corporation, is invalid merely because it contravenes subsection (1) or (2).
DUTIES AND RESPONSIBILITIES
If there is a conflict or potential conflict between a registered member's duty to a person receiving an optometric service from the member, the association or the public and the member's duty, as an employee, director or officer, to a corporation, the duty to the person receiving the optometric service, the association or the public prevails.
A registered member must comply with this Act and the regulations, by-laws, rules of ethics, professional standards and guidelines for the profession of optometry, despite any relationship the member may have with a corporation.
A professional corporation or a corporation permitted by regulation to practise optometry must not contravene any provision of this Act, or the regulations or the by-laws of the association.
The fiduciary and ethical obligations of a member, and the obligations of a member respecting confidentiality, to a person receiving an optometric service from the member
(a) are not diminished by the fact that the member is practising through a corporation; and
(b) apply equally to a corporation on whose behalf the service is provided, and to its directors and officers and, in respect of a professional corporation, its shareholders.
The liability of a member to a person receiving an optometric service is not affected by the fact that the service is provided on behalf of a corporation.
A person is jointly and severally liable with a professional corporation for all professional liability claims made against the corporation in respect of acts, errors or omissions that were made or occurred while the person was a voting shareholder of the corporation.
If the conduct of a member through whom a corporation is or was practising optometry at the time the conduct occurs or occurred is the subject of a complaint or an investigation or discipline proceedings,
(a) any power of entry, inspection or investigation that may be exercised in respect of the member, any premises or place where the member practises or has practised optometry or any book, record, document or equipment relating to the member's practice may be exercised in respect of the corporation and its premises or place, equipment, books, records and documents; and
(b) the corporation is jointly and severally liable with the member for all fines and costs the member is ordered to pay.
Any condition imposed on the registration or optometric drug licence of a member practising optometry on behalf of a corporation applies to the corporation in relation to its practice through that member.
SUSPENSION OR CANCELLATION
Subject to subsection (2), the council may suspend or cancel a professional corporation's permit if
(a) the corporation ceases to meet any of the requirements of eligibility for a permit set out or referred to in subsection 17.2(1);
(b) the corporation contravenes any provision of this Act or the regulations or by-laws of the association or any condition on the corporation's permit; or
(c) a registered member, in the course of providing an optometric service on behalf of the corporation, does or fails to do anything as a result of which the member's registration is suspended or cancelled.
A professional corporation's permit must not be suspended or cancelled by reason only of the fact that
(a) one or more shares of the corporation have vested in
(i) an executor or administrator of the estate of an individual as a consequence of the death of the individual, or
(ii) a trustee in bankruptcy on the bankruptcy of the owner of the shares,
unless the corporation is not carrying on the practice of optometry through any other registered member or the shares continue to be vested in the executor, administrator or trustee for more than 180 days, or for any longer period allowed by the registrar;
(b) the former spouse or common-law partner of a voting shareholder continues to own a share of the corporation after the end of their marriage or common-law relationship;
(c) the registration of a member has been suspended, unless
(i) the member remains a director or officer of the corporation for more than 14 days after the commencement of the suspension, or
(ii) the corporation is not providing optometric services through any other registered member; or
(d) the registration of a member has been surrendered or cancelled, unless
(i) the member remains a director or officer of the corporation for more than 14 days after the surrender or cancellation,
(ii) the member remains a voting shareholder of the corporation for more than 90 days after the surrender or cancellation, or for any longer period allowed by the council, or
(iii) the corporation is not providing optometric services through any other registered member.
When a corporation's permit is cancelled, it must promptly surrender the permit to the registrar.
Instead of suspending or cancelling the corporation's permit under section 17.7, the council may take any other action it considers appropriate, including one or more of the following:
(a) reprimanding the corporation or one or more directors or voting shareholders of the corporation;
(b) imposing conditions on the permit;
(c) imposing a fine on the corporation, payable to the association, in an amount not exceeding $25,000.
The council must
(a) give notice to the professional corporation in writing with the reasons for the council's decision to suspend or cancel its permit or take any action under section 17.8; and
(b) advise the professional corporation of the right to appeal the decision to the court.
A professional corporation may appeal the decision of the council to the court by filing a notice of appeal within 30 days after receiving notice of the council's decision.
Upon hearing an appeal, the court may
(a) dismiss the appeal;
(b) make any decision that in its opinion should have been made; or
(c) refer the matter back to the council for further consideration in accordance with any direction of the court.
A professional corporation must notify the registrar, within the time period and in the form and manner determined under the by-laws, of any change in the voting shareholders, the other shareholders, the directors or the officers of the corporation.
An agreement or proxy that vests the authority to exercise any voting right attached to a share of a professional corporation in a person who is not a registered member is void.
A unanimous shareholders' agreement within the meaning of subsection 140(2) of The Corporations Act in respect of a professional corporation is void unless each shareholder of the corporation is a registered member or a professional corporation.
No corporation shall hold itself out as a professional corporation unless it holds a valid permit.
No person shall hold themselves out as a shareholder, officer, director, agent or employee of a professional corporation unless the corporation holds a valid permit.
No person shall make a representation or declaration for the purpose of having a permit issued or renewed if they know it to be false.
No person shall knowingly assist a person in making a false representation or declaration for the purpose mentioned in subsection (1).
RECORD OF CORPORATIONS
The council must establish a record of all professional corporations holding permits issued under this Part.
The registrar must maintain the record of professional corporations in accordance with this Act and the by-laws.
The record of professional corporations must contain the following information for each corporation to which a permit has been issued:
(a) the name of the corporation;
(b) the name of each registered member who is a shareholder or director of the corporation;
(c) the name of each registered member through whom the corporation will be carrying on the practice of optometry;
(d) the conditions, if any, imposed on the permit;
(e) the date the permit was issued;
(f) whether the permit has been cancelled or suspended and, if so, when;
(g) any other information required by by-laws to be kept in the record.
The registrar must make the record of professional corporations available for inspection by any person at the office of the registrar at all reasonable times during regular business hours free of charge; but any inspection may be refused if there is reasonable cause to believe that the person seeking inspection does so for commercial purposes.
Any power that the association may exercise in respect of a member may be exercised in respect of
a corporation that is
(a) a professional corporation;
(b) a corporation permitted by regulation to practise optometry; or
(c) a shareholder of a corporation referred to in clause (b).
No person shall engage in advertising in relation to the practice of optometry that is untruthful, inaccurate or otherwise capable of misleading or misinforming the public.
The council shall appoint a complaints committee consisting of one or more registered members.
Any person may make a complaint in writing to the registrar about the conduct of a registered member.
If, after a member's certificate of registration is suspended, revoked or not renewed under 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 was in effect;
the complaint may be dealt with if it is made within two years following the date of suspension, revocation or failure to renew as if the former member's registration were still in effect.
The registrar shall refer a complaint made under this section to the complaints committee.
When the registrar refers a complaint to the complaints committee, the committee shall
(a) notify the investigated member named in the complaint and request that the member respond to the complaint in writing; and
(b) conduct a preliminary investigation of the complaint and attempt to resolve it informally if, in the committee's opinion, it is appropriate to do so.
When conducting a preliminary investigation, the complaints committee may require any registered member
(a) to produce to the committee any records in the possession or under the control of the member; and
(b) to attend at the preliminary investigation.
The association may apply ex parte to the court for an order
(a) directing any registered member to produce to the complaints committee any records in the member's possession or under their control, if it is shown that the member failed to produce them when required by the complaints committee; or
(b) directing any person to produce to the complaints committee any records that are or may be relevant to the complaint being investigated.
The complaints committee 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.
On conclusion of a preliminary investigation, the complaints committee may
(a) direct that no further action be taken;
(b) issue a formal written caution to the investigated member censuring the member's conduct; or
(c) direct that the matter be referred in whole or in part to the discipline committee.
The complaints committee shall notify the investigated member and the complainant of a decision made under subsection (1).
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 or giving a direction under this section.
A formal caution may be issued under clause (1)(b) only after the complaints committee has met with the investigated member.
On being advised of a decision of the complaints committee to issue a formal caution under clause (1)(b), the investigated member may request the complaints committee to refer the matter to the discipline committee, and in that event the matter shall be referred to the discipline committee and the complaints committee shall not proceed with the issuance of the proposed caution.
The council shall, in accordance with the by-laws, appoint an appeals committee consisting of three persons, two of whom are registered members and one of whom is a lay person appointed from the roster of persons appointed under subsection 18.6(2).
No person who participated in the investigation of a complaint shall be a member of the appeals committee hearing an appeal of that matter.
A complainant who receives notification under subsection 18.3(2) directing that no further action be taken in connection with the complaint may, by notice in writing mailed within 30 days of the date of notification, appeal that direction to the appeals committee.
On an appeal under subsection (3), 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.
The appeals committee shall notify the investigated member and complainant in writing of its decision and the reasons for its decision.
The appeals committee is not required to hold a hearing or to afford to any person an opportunity to appear or to make oral submission before making a decision or giving a direction under subsection (4), but the committee shall give the complainant an opportunity to make a written submission.
Notwithstanding anything in this Act, the complaints committee may, when there is a question of serious risk to the public, suspend a registered member's certificate of registration pending the outcome of proceedings under sections 18 to 18.17.
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 decision of the complaints committee under subsection (1).
The council shall appoint a discipline committee consisting of not less than three persons, of whom one shall be appointed chairperson, and at least one member of the discipline committee shall be a lay person.
For the purpose of subsection (1) and subsection 18.4(1), the minister may appoint a roster of lay persons who may, in addition to the lay member appointed to the council under subsection 5(2), be appointed to the discipline committee and the appeals committee.
No person who participated in the investigation of a complaint or who considered an appeal of a complaint shall act as a member of the discipline committee considering the same matter.
On referral of a matter to the discipline committee, the discipline committee shall hold a hearing.
At least 30 days before the hearing, the discipline committee shall serve on the investigated member, either personally or by registered mail, a notice stating the date, time and place at which the discipline committee will hold the hearing.
The association and the investigated member may appear and be represented by counsel at a hearing before the discipline committee.
Except as otherwise provided in this section, a hearing of the discipline committee shall be open to the public, but there shall be no reporting in the media of anything that would disclose the identity of 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 discipline committee makes an order under section 18.12 or 18.13.
The investigated member, or the complaints committee or the appeals committee referring a matter to the discipline committee under subsection 18.3(1) or 18.4(4), may request that the hearing or any part of the hearing be held in private.
When a request is made under subsection (2), the discipline 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, either in the public interest or in the interest of any person affected, 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.
At a hearing of the discipline committee, 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.
For the purpose of a hearing under this Act, the members of the discipline committee have power to administer oaths and affirmations.
The oral evidence given at a hearing of the discipline committee shall be recorded.
The investigated member and any other person who, in the opinion of the discipline committee, has knowledge of the complaint or matter being investigated are compellable witnesses in any proceeding under this Act.
The attendance of witnesses before the discipline committee 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.
On the written request of the investigated member or the member's counsel or agent, the registrar shall provide any notices that the person requires for the attendance of witnesses or the production of records.
Proceedings for civil contempt of court may be brought against a witness
(a) who fails to attend before the discipline committee 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 discipline committee.
A witness, other than the investigated member, who has been served with a notice to attend or a notice for production under subsection (2) or (3), is entitled to be paid the same fees in the same manner as are payable to a witness in an action in the court.
The discipline committee, on proof of service on the investigated member of the notice of hearing, may
(a) proceed with the hearing in the absence of the investigated member or the member's counsel or agent; and
(b) act and decide on the matter heard in the same way as if the investigated member were in attendance.
Any conduct of a registered member that in the opinion of the discipline committee
(a) is detrimental to the public interest;
(b) harms or tends to harm the standing of the profession of optometry generally;
(c) contravenes this Act or the regulations or by-laws; or
(d) displays a lack of knowledge of or a lack of skill or judgment in the practice of optometry;
constitutes either unskilled practice of optometry or professional misconduct, whichever the discipline committee finds.
If the discipline committee finds that the conduct of an investigated member constitutes unskilled practice of optometry or professional misconduct, or both, the committee may make one or more of the following orders:
(a) reprimand the member;
(b) suspend the member's certificate of registration for a stated period or until the member has completed, to the satisfaction of the discipline committee, one or both of the following:
(i) a course of studies or supervised practical clinical experience, or both, as specified by the committee,
(ii) a specified course of treatment for a health condition that adversely affects the member's ability to practise optometry;
(c) impose conditions on the member's entitlement to practise optometry, including conditions that the member
(i) limit his or her practice to specified areas of the practice of optometry,
(ii) practise under supervision,
(iii) permit periodic inspections of the member's practice or audits of records or both,
(iv) report to the discipline committee, registrar or council on specific matters,
(v) complete a particular course of studies or obtain supervised practical clinical experience, or both, to the satisfaction of the discipline committee,
(vi) complete, to the satisfaction of the discipline committee, a specified course of treatment for a health condition that adversely affects the member's ability to practise optometry,
and may order the member to pay any costs associated with the fulfillment of such conditions;
(d) direct the member to waive or reduce money owed to, or repay part or all of the money paid to the member that, in the opinion of the discipline committee, was unjustified for any reason;
(e) revoke the member's certificate of registration.
In order to assist the discipline committee in determining an appropriate order under this section, the committee may be advised of any formal cautions previously issued to the member under clause 18.3(1)(b) and the circumstances under which they were issued.
When a member's certificate of registration is suspended or revoked, the member shall not practise optometry during the period of the suspension or revocation.
The discipline committee may make any ancillary order that is appropriate or required in connection with an order mentioned in subsection (1) or may make any other order that it considers appropriate in the circumstances, including an order that a further or new investigation be held into any matter.
The discipline committee may, in addition to or instead of dealing with the conduct of an investigated member in accordance with section 18.12, order that the investigated member pay
(a) all or part of the costs of the investigation and hearing;
(b) a fine not exceeding $10,000.; or
(c) both costs under clause (a) and the fine under clause (b);
within the time set by the order.
If an investigated member fails to comply with an order made under subsection (1) or section 18.12, the council may suspend the member's certificate of registration until the order is complied with.
The association may file an order to pay a fine or costs made under subsection (1) or section 18.12 in the court, and on the order being filed it may be enforced in the same manner as a judgment of the court.
The discipline committee shall, following the completion of a hearing, make a written decision on the matter consisting of the reasons for its decision and a statement of any order made by it.
The decision of the discipline committee shall be served on the investigated member personally or by registered mail.
The investigated member may examine the record of the proceedings before the discipline committee and is entitled to receive, on payment of the cost of providing it, a transcript of the oral evidence given before the discipline committee.
The association may, after the expiration of any appeal period, publish
(a) the name of a registered member in respect of whom an order is made under section 18.12 or 18.13; and
(b) the circumstances relevant to the findings and the order of the discipline committee.
The decision of the discipline committee remains in effect pending an appeal to the court unless the court, on application, stays the decision pending the appeal.
APPEAL TO COURT
An investigated member may appeal an order made by the discipline committee to the court.
An appeal shall be commenced
(a) by filing a notice of appeal stating the reasons for the appeal and including an undertaking to provide the court with a transcript of the oral evidence given before the discipline committee; and
(b) by giving a copy of the notice of appeal to the registrar;
within 30 days from the date on which the order of the discipline committee is served on the investigated member.
An appeal to the court shall be founded on the record of the hearing before the discipline committee.
On hearing the appeal, the court may make any order it considers just.
No action lies against the association, the council, the registrar, an employee of the association, a committee or board or member of a committee or board established under this Act or the regulations or the by-laws, or any officer or person acting on the instructions of any of them for anything done in good faith in the performance or intended performance of a duty or in the exercise or intended exercise of a power under this Act, the regulations or the by-laws or for any neglect or default in the performance or exercise in good faith of such a duty or power.
No person shall practise optometry within the province except as follows:
(a) in the case of a registered member, as authorized by the member's certificate of registration;
(b) in the case of a person issued a certificate of registration under section 11.1, as authorized by that certificate;
(c) in the case of a professional corporation, as authorized by the corporation's permit;
(d) in the case of a corporation permitted by regulation, through one or more members as authorized by their certificates of registration.
No person shall falsely personate a registered member, or professional corporation, of a like or different name, or buy, sell, or fraudulently obtain a certificate of registration or permit issued to another.
Evidence of practising or offering to practise, or of the public representation of being qualified to practise, optometry as herein provided is admissible in evidence in any prosecution for a violation of this section.
The use of
(a) test lenses or trial frames; or
(b) instrumentation to measure or refract the human visual system; or
(c) instrumentation to detect or diagnose defects of the human visual system;
is admissible in evidence as prima facie proof of practising optometry.
Every person who violates the provisions of this section is guilty of an offence and on summary conviction is liable
(a) for a first offence, to a fine of not less than $500. or more than $1,000., or to imprisonment for a term of six months, or to both; and
(b) for a second or subsequent offence to a fine of not less than $1,000. or more than $2,000., or to imprisonment for a term of one year, or to both.
If a corporation commits an offence under this Act, a director, officer or employee of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence and is liable on conviction, whether or not the corporation has been prosecuted or convicted, to a fine of not less than $200 and not more than the maximum fine that may be imposed on the corporation for its offence.
Where a person practises optometry, or attempts to practise optometry, or any branch thereof, or does or attempts to do anything contrary to this Act, or any regulation or by-law made under this Act the Court of King's Bench, on motion of the secretary of the association, may restrain the person by injunction from doing any of those things.
A certificate purporting to be signed by the registrar and stating
(a) that a named person was or was not, on a specified day or during a specified period,
(i) a registered member,
(ii) a professional corporation, or a corporation permitted by regulation to practise optometry, or
(iii) an officer or staff member of the association, or a member of the council or of a committee established by or under this Act;
(b) that information is or is not recorded in the register; or
(c) that a copy of a by-law is a true copy of a by-law of the association, and that it was in force on a specified day or during a specified period;
is, in the absence of evidence to the contrary, admissible in evidence in any action, proceeding or prosecution as proof of the facts stated. Proof of the registrar's appointment or signature is not required.
Nothing in this Act applies to duly qualified medical practitioners, or to opticians to the extent that they are authorized to practise under The Opticians Act.
Nothwithstanding anything contained in this Act, any person
(a) who sells glasses or contact lenses on prescription from a duly qualified medical practitioner, a registered member or a person who is authorized to practise optometry in another jurisdiction in Canada; or
(b) who sells complete ready-to-wear glasses or other visual aids as merchandise from a permanent place of business;
is not solely by reason thereof, practising optometry or contravening this Act.
Subject to section 23, every person employed, appointed or retained for the purpose of administering this Act, and every member of the council or a committee of the council, shall preserve secrecy about all information that comes to his or her knowledge in the course of his or her duties, and shall not communicate any information to any other person, except
(a) to the extent the information is available to the public, or is required to be disclosed, under this Act;
(b) in connection with the administration of this Act, including, but not limited to, the registration of registered members, the issuance of permits, complaints about members, allegations of members' incapacity, unfitness, incompetence or acts of professional misconduct, or the governing of the profession;
(c) to a body that governs the practice of a health profession pursuant to an Act of the Legislature, to the extent the information is required for that body to carry out its mandate under the Act;
(d) to a body that governs the practice of optometry in a jurisdiction other than Manitoba; or
(e) as may be required for the administration of The Health Services Insurance Act.
A person who contravenes subsection (1) is guilty of an offence and is liable, on summary conviction, to a fine of not more than $50,000.
In addition to any other information maintained in administering this Act, the registrar must collect and record each registered member's
(a) date of birth;
(b) sex; and
(c) education or training, as required for registration and renewal of registration.
A member must provide the registrar with the information required under subsection (1) in the form and at the time set by the registrar.
The minister may request in writing that the registrar provide information on members — including personal information — contained in the register or collected under subsection (1), to establish and maintain an electronic registry of health service providers to be used for the following purposes:
(a) to validate the identity of a provider seeking access to a patient's personal health information maintained in electronic form;
(b) to administer programs respecting payment for professional services under The Health Services Insurance Act;
(c) to generate information — in non-identifying form — for statistical purposes.
The registrar must provide the minister with the information — including personal information — requested under subsection (3), in the form and at the time set by the minister after consulting with the registrar.
Despite any other provision of this Act or any provision of another Act or a regulation, the minister may
(a) disclose — in non-identifying form — information provided under subsection (4) to any entity authorized to receive it under subsection (6); and
(b) impose conditions respecting the use, retention and further disclosure of the information.
An entity must comply with any conditions imposed by the minister.
The following entities are authorized to receive information — in non-identifying form — under subsection (5):
(a) a health authority as defined in The Health System Governance and Accountability Act;
(b) Regional Health Authorities of Manitoba, Inc.;
(c) [repealed] S.M. 2021, c. 15, s. 102;
(d) The Manitoba Centre for Health Policy;
(e) a government or organization with which the Government of Manitoba has entered into an agreement to share information for the purposes stated in subsection (3).
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