as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. O70
The Optometry Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"council" means the council of the society; ("Conseil")
"lay person" means a person who
(a) is not a civil servant within the meaning of The Civil Service Act, 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")
"optometric drug licence" means a licence for the use of topically administered drugs for diagnostic purposes; ("permis d'utilisation de médicaments optométriques")
"practice of optometry" means the science related to the assessment of the health of the eye, its related structures and environment, and the diagnosis and treatment of anomalies affecting the functional status and efficiency of the visual system including
(a) the qualitative and quantitative characteristics of the refraction accommodative and sensory ocular motor and perceptual components,
(b) the employment of preventive, corrective or rehabilitative procedures,
(c) the detection of disease evident in the examination process, and
(d) the offering of advice, consultation and counselling; ("optométrie")
"registrar" means the registrar of the board of examiners; (" registraire")
"society" means The Manitoba Optometric Society to which section 4 refers. ("Ordre")
The objects of this Act are to create a society for the regulation of the practice of optometry within the province and to prevent incompetent persons from practising optometry.
Persons deemed to be practising optometry.
Notwithstanding the definition
"practice of optometry" any person not exempted from the provisions of this Act shall be deemed to be practising optometry if
(a) he 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, he alleges or implies or states that he is, or holds himself 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 for the examination, diagnosis, improvement or correction of the human vision system; or
(c) he employs in the examination, diagnosis, or treatment of another, any means, including the use of topically applied diagnostic pharmaceutical agents, for the measurement, improvement, or development of any or all functions of human vision or 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) he 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) he 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.
There shall be a council of the society made up of eight members of the society and one lay person.
Election and appointment of members of council.
The members of the council who are members of the society shall be elected to office in accordance with the by-laws of the society; and the lay member shall be appointed by the Lieutenant Governor in Council.
Elected members to be residents of the province.
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 or 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 society, 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.
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 members of the society ;
(b) respecting the qualifications required of candidates for registration including the designation of educational institutions whose programs for educating optometrists meet with the approval of the council;
(c) specifying the procedure for licensure and relicensure of members;
(d) designating with the approval of the minister responsible for health matters in the province (after consultation with The College of Physicians and Surgeons of Manitoba) those pharmaceutical agents and the appropriate dosages that may be used for diagnostic purposes and not for treatment purposes, by optometrists;
(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;
(g) specifying those schools that are considered to be accredited schools of optometry for the purpose of clause 12(1)(a);
(h) prescribing a course of studies or adopting a course of studies in the proper use of topically administered drugs for diagnostic purposes offered by an accredited school of optometry;
(i) setting out the procedure to be followed and the requirements to be met by an optometrist who fails to meet the requirements of subsection 12(1) before a licence is granted to that optometrist to use topically administered drugs for diagnostic purposes.
The council may make rules governing its procedure and the day to day administration of the affairs of the society.
The council shall appoint a board of examiners, one of whom shall be the registrar, for the purpose of conducting the examinations of the society 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.
Lay person on examining board.
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 an optometrist who fails to meet the requirements of subsection 12(1) to qualify for a licence to use topically administered drugs for diagnostic purposes, arrange to provide a course consistent with a course prescribed or adopted in a regulation made under clause 7(1)(h).
The society 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 society;
(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 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 to be paid by persons applying for registration under the Act and for examinations under section 11.
Rules of ethics to provide for medical consultation.
The rules of ethics established and adopted pursuant to clause (l)(i) shall provide, inter alia, that every member of the society 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 member of the society at his address as registered with the society 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.
Registration and exemption under former Act.
Every person who has received a certificate of registration or a certificate of exemption under any Act for which this Act is substituted, continues to be entitled to practise optometry under this Act, subject to this Act.
Application for right to practise.
Every person desiring to practise optometry shall
(a) file with the registrar, upon forms to be by him supplied, an application duly verified, stating therein that the applicant
(i) is 18 years of age or more;
(ii) is of good moral character;
(iii) has graduated from a college of optometry maintaining a standard satisfactory to the board; and
(b) present himself before the board of examiners and submit to an examination as to his qualifications for the practice of optometry.
Persons from other jurisdictions seeking registration.
Where a person who has practised or has been practising optometry in a jurisdiction other than Manitoba, applies for a certificate of registration, he shall, in addition to the requirements of subsection (1), submit evidence satisfactory to the board of examiners that he was at all times during his practice in that jurisdiction a member in good standing of the relevant society or association, as the case may be, of that jurisdiction.
Every candidate successfully passing the examination shall be registered by the council as possessing the qualifications required by this Act, and shall receive from the council a certificate thereof.
Before any certificate is issued, it shall be numbered and recorded in a book kept in the office of the registrar and its number shall be noted upon the certificate.
Photographs of persons registered.
A photograph of the person applying for registration shall be filed with the record.
Any optometrist who desires to use topically administered drugs for diagnostic purposes shall
(a) satisfy the board of examiners that he has completed a course in the proper use of those drugs in an accredited school of optometry as specified in the regulations;
(b) satisfy the board of examiners of his competency in general and ocular pharmacology as it applies to optometry; and
(c) be approved by the board of examiners as a fit and proper person to be licensed by the board to use topically administered drugs for diagnostic purposes.
The board of examiners upon being satisfied that an optometrist has met the requirements of subsection (1), may issue an optometric drug licence to the optometrist.
Use of designation "optometrist".
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 person practising optometry shall display his certificate of registration or exemption in a conspicuous place in his office or place wherein he practises optometry.
Examination fee payable in advance.
The fee payable for an examination under section 11 is payable in advance to the treasurer or the secretary-treasurer of the society.
Every holder of a certificate is a member of the society, and is liable to pay the dues of the society fixed by the council.
Each registered optometrist shall pay to the treasurer or secretary-treasurer such annual dues as are set by the society, and upon payment thereof shall receive an annual renewal of his certificate; and, in case of default in the payment of the dues, his certificate may be revoked by the council upon 30 days' notice being given.
Reissue of revoked certificate.
Where 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.
Where a person who has held a certificate of registration under this Act, that has not yet been renewed for five consecutive years, applies for re-registration under this Act, he shall apply to the council to be registered; and the council may issue a certificate of registration upon such conditions as it deems fit and as are approved by the society at a general meeting thereof.
No expenses of the society are a charge against the Consolidated Fund.
Disposition of funds received.
All moneys received from fees, penalties, and dues shall be placed in a chartered 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 society.
Restriction on use of title "Doctor".
No person practising optometry shall, in conjunction with his name and to designate his profession or calling, display or make use of the prefix or title "Doctor" or the abbreviation "Dr.", or any other words or letters commonly used to designate a legally qualified medical practitioner, or which suggests that he is a graduate or licentiate in medicine or surgery of any university or diploma granting body, unless at the same time he displays, or makes use of, the word "optometrist", immediately preceding or following his name.
Hearing of charges against members.
Where a charge is made against a member of the society of
(a) professional misconduct; or
(b) any other misconduct provided for by the by-laws of the society; or
(c) incompetency or inebriety; or
(d) a violation of any provision of this Act; or
(e) having been convicted of a criminal offence;
the council, subject to subsection (2), shall hear and determine the charge.
Reference to discipline committee.
Notwithstanding subsection (1), where the council receives a complaint or a charge against any member of the society, it may refer the complaint or charge to the discipline committee to conduct an investigation of the complaint or charge; and that committee may for the purpose of the investigation hold a hearing.
Report, recommendations and transcript to council.
Where a hearing is conducted by the discipline committee under subsection (2), upon the completion thereof the committee shall submit a written report of its findings together with its recommendations and a copy of the transcript of the evidence adduced before it, to the council.
For the purpose of conducting a hearing under subsection (1) or (2) the members of council, or the members of the discipline committee have the powers of commissioner under Part V of The Manitoba Evidence Act.
Three members of council may conduct hearing.
Where the council decides to hold a hearing under subsection (1), it may appoint three of its members including the lay member of council to conduct the hearing; and the decision of those members shall be deemed to be the decision of the council.
Substitute lay person as member of council.
Where at the time the council decides to appoint three members of council for the purpose of holding a hearing as mentioned under subsection (5), the lay member of council is ill or out of the province, the council may appoint another lay person as a member of council for the purpose of conducting and completing the hearing.
Action by council following hearing.
After the completion of a hearing by the discipline committee or the council, as the case may be, the council, notwithstanding any other penalty prescribed under this Act, may
(a) reprimand the member; or
(b) suspend or revoke the certificate of registration of the member for such period of time that the council considers just; or
(c) if it is satisfied that the charge was frivolous and vexatious, dismiss the charge; or
(d) impose a monetary penalty on the member.
The council, at the expense of the society, may, for the purpose of a hearing under this section, employ such legal or other assistance as it considers necessary.
The member whose conduct is the subject of a hearing Under this section has the right to be represented by counsel at the hearing; and any member of the society and his counsel have the right to attend the hearing.
Notice of the date, time and place of the hearing and of the particulars of the charge shall be given by the council to the member whose conduct is the subject of the hearing, by registered mail addressed to that member at his address as shown on the register of the society, at least 14 days prior to the date fixed for the hearing.
The testimony of witnesses before the council or a committee thereof, shall be under oath; and there is full right to cross-examine all witnesses called to adduce evidence in prosecution, defence, and reply.
Hearing may proceed in absentia.
Where the person whose conduct is the subject of a hearing, though duly notified of the date, time and place of the hearing, fails to attend, the council or committee, as the case may be, may proceed with the hearing or any adjournment thereof, in his absence.
The council or committee and any party to the proceedings may obtain, on praecipe from the Court of Queen's Bench subpoenas for the attendance of witnesses and the production of books, documents, and things; and disobedience thereof shall be deemed a contempt of court.
Witnesses are entitled to the like allowance as witnesses attending upon the trial of an action in the Court of Queen's Bench.
Where the charge is found to be frivolous or vexatious, the council shall pay such costs as it may deem just to a member whose conduct has been the subject of inquiry.
Costs may be ordered paid by member.
Where the council directs a member to be reprimanded, his certificate suspended or revoked, it may direct that the costs of, and incidental to, the inquiry be paid by the member; and, after taxation of those costs by one of the taxing officers of the Court of Queen's Bench, execution may issue out of the Court of Queen's Bench, for the recovery thereof in like manner as upon a judgment in an action in the court.
Reinstatement of suspended or revoked certificate.
Any person whose certificate has been suspended or revoked may,
(a) after 15 days in the case of a suspension; and
(b) after 30 days in the case of a revocation;
apply to the council to have the suspension terminated or the certificate reissued, as the case may be; and if the application is approved, the applicant shall forthwith pay to the society a penalty of $5.
Practising after revocation of certificate.
Any person practising optometry after his certificate has been suspended or revoked shall be deemed to have practised optometry without registration.
No action for anything done in good faith.
No action shall be brought against the council or the committee or any member thereof for anything done in good faith under this Act, or on account of any want of form or irregularity in the proceedings of the council or committee.
A member who is reprimanded or whose certificate of registration has been suspended or revoked may, at any time within one month from the date of the decision of the council, appeal the decision to a judge of the Court of Queen's Bench.
The appeal may be by motion, notice of which shall be served upon the secretary-treasurer of the society at least 14 days before the date fixed for hearing the appeal, and shall be founded upon a copy of the proceedings before the council, the evidence taken, and the decision or report of the council in the matter, certified by the secretarytreasurer; and the secretary-treasurer shall, upon the request of any person desiring to appeal, at the expense of that person, furnish to him a certified copy of all evidence, proceedings, reports, orders and papers, upon which the council has acted in connection with revocation.
At any time after the filing of the notice of appeal the member affected by a reprimand, suspension or revocation under this section may apply to the Court of Queen's Bench for an order suspending the penalty until the appeal has been heard.
Practising without certificate forbidden.
No person, not a holder of a valid and subsisting certificate of registration or exemption duly issued and recorded as herein provided, shall practise optometry within the province.
No person shall falsely personate a registered optometrist of a like or different name, or buy, sell, or fraudulently obtain a certificate of registration or exemption 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.
Prima facie proof of practising optometry.
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.
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 Queen's Bench, on motion of the secretary of the society, may restrain the person by injunction from doing any of those things.
Prima facie validity of certificate.
In any action, preceeding or prosecution, a certificate signed by the secretary and under the seal of the society shall be admitted in evidence as prima facie proof of the registration or non-registration as a member of the society of any person named in the certificate or of the suspension from practice as a member of the society of any person named in the certificate, as of the date of the certificate without proof of the signature or appointment of the secretary.
Nothing in this Act applies to duly qualified medical practitioners and to ophthalmic dispensers to the extent that they are authorized to practise under The Ophthalmic Dispensers Act.
Nothwithstanding anything contained in this Act, any person
(a) who sells glasses or contact lenses on prescription from a duly qualified medical practitioner or a duly registered optometrist; 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.