O. Reg. 853/93: PROFESSIONAL MISCONDUCT

Dentistry Act, 1991
Loi de 1991 sur les dentistes

ONTARIO REGULATION 853/93

PROFESSIONAL MISCONDUCT

Historical version for the period March 31, 1994 to August 26, 2007.

Last amendment: O. Reg. 220/94.

This Regulation is made in English only.

1. In this Regulation,

“agreement” means an agreement to provide dental services for a patient on a basis other than fee for service or where the responsibility for payment is with a person other than the patient or the patient’s guardian;

“associated member” means a member who engages or engaged in the practice of dentistry as an employee of a principal member or who provides dental services to a principal member’s patients at that member’s office as an independent contractor;

“practice name” means a name other than the name of a member who practises at the location to which the name applies;

“principal member” means,

(a) a member with whom an associated member practises or practised as an employee or independent contractor, or

(b) a member with whom a member engages or engaged in the practice of dentistry as a partner. O. Reg. 853/93, s. 1.

2. The following are acts of professional misconduct for the purposes of clause 51 (1) (c) of the Health Professions Procedural Code:

1. Contravening a standard of practice or failing to maintain the standards of practice of the profession.

2. Contravening a term, condition or limitation imposed on the member’s certificate of registration.

3. Delegating an act set out in section 4 of the Act except as permitted by the regulations.

4. Ordering a person to perform an intra-oral procedure or delegating or assigning such a procedure to a person without first ensuring that the person is qualified to perform the procedure safely and competently.

5. Treating or attempting to treat a disease, disorder or dysfunction of the oral-facial complex that the member knows or ought to know is beyond his or her expertise or competence.

6. Recommending or providing an unnecessary dental service.

7. Treating a patient for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose in a situation in which a consent is required by law, without such a consent.

8. Abusing a patient.

9. Practising the profession while the member’s ability to do so is impaired by any substance.

10. Prescribing, dispensing or selling a drug for an improper purpose, or otherwise using improperly the authority to prescribe, dispense or sell drugs.

11. Contravening the standards of practice, as published by the College, in relation to inducing general anaesthesia or conscious sedation.

12. Making a misrepresentation about a remedy, treatment, device or procedure or failing to reveal the exact nature of a remedy, treatment, device or procedure following a patient’s request to do so.

13. Making a representation about a remedy, treatment, device or procedure for which there is no generally accepted scientific or empirical basis.

14. Where the member has entered into an agreement to provide dental services, failing to provide the services, without reasonable cause, unless,

i. the period specified in the agreement has expired, or

ii. the patient is given five business days notice of the member’s intention to discontinue the dental services.

15. Failing, without reasonable cause, to satisfy the terms of an agreement or any arrangement with a patient respecting the provision of dental services.

16. Discontinuing, without reasonable cause, dental services that are needed, other than services provided under agreement, unless,

i. the patient requests the discontinuation,

ii. alternative services are arranged, or

iii. the patient is given a reasonable opportunity to arrange alternative services.

17. Giving information about a patient to a person other than the patient or his or her authorized representative except with the consent of the patient or his or her authorized representative or as required or allowed by law.

18. Failing to make arrangements for emergency dental services for the member’s patients or to advise a patient how to obtain emergency dental services.

19. Failing to take reasonable steps to prevent an associated member or partner from committing or repeating an act of professional misconduct or incompetence in the principal member’s or partner’s office.

20. Failing to comply with section 3 relating to an agreement with a patient.

21. Failing to comply with section 4 respecting payment in advance for treatment provided on a fee for service basis.

22. Failing to provide a statement of account to a patient upon the completion of a dental service or failing to state in the statement of account the service provided and the fee charged for it.

23. Failing to itemize or explain, when requested to do so by a patient or the patient’s guardian or authorized representative, the services provided and the fee charged for each service using terminology understandable to a patient.

24. Failing to itemize in a statement of account that includes a commercial laboratory fee, the portion of the fee relating to the actual costs associated with the use of the commercial laboratory.

25. Failing to keep records as required by the regulations.

26. Falsifying a record relating to the member’s practice.

27. Failing, without reasonable cause, to provide a report or certificate relating to an examination or treatment performed by the member, within a reasonable time, to a patient or his or her authorized representative after the patient or his or her authorized representative has requested such a report or certificate.

28. Signing or issuing a certificate, report or similar document that the member knows or ought to know contains a false, misleading or improper statement.

29. Failing, without reasonable cause, to provide within a reasonable time, access to a patient record or radiograph or a copy of a patient record or radiograph upon the request of a patient or his or her authorized representative.

30. Failing to make arrangements with a patient for transfer of the patient record or a copy thereof when,

i. the member retires from practice, or

ii. the patient requests the transfer.

31. Charging a fee that is excessive or unreasonable in relation to the service performed.

32. Charging a fee or an amount under an agreement that is excessive or unreasonable having regard to the services covered by the agreement.

33. Submitting an account or charge for dental services that the member knows or ought to know is false or misleading.

34. Accepting an amount in full payment of an account or charge that is less than the full amount of the account or charge submitted by the member to a third party payer, unless the member has made reasonable efforts to collect the balance from the patient or has the written consent of the third party payer.

35. Charging a laboratory fee for a dental appliance or device that is more than the commercial laboratory cost actually incurred by the member.

36. Selling, assigning, pledging or encumbering any debt owed to the member for professional services rendered to a patient where the security interest would permit the holder to enforce collection of money owed by a patient or to contact the member’s patients to attempt to collect these money.

37. Accepting a credit card to obtain payment for a dental service unless the provider of the credit card agrees to rely solely on the provider’s agreement with the credit card holder or on the credit card sales slip, and not on the member’s patient records, to enforce payment.

38. Engaging in the practice of dentistry where the member has a conflict of interest in contravention of section 5.

39. Failing to comply with section 6 on the break up of a relationship between a principal and associate or the dissolution of a practice or partnership.

40. Using a name other than the member’s name as set out in the register or the practice name, in the course of providing or offering to provide dental services.

41. Using a designation other than “dentist”, “dental surgeon”, a prescribed specialty designation, the member’s earned university degrees or earned equivalents for which the Council or the Executive Committee thereof has given its prior written approval, “dental centre”, “dental clinic” or “and associates” in the course of providing or offering to provide dental services.

42. Where a principal member uses the designation “dental centre”, “dental clinic” or “and associates”, failing to notify the College in writing of the names and certificate numbers of all the members who practise at the location to which the designation applies and the names of all of such members who are principal members, or failing to notify the College in writing of any change in members or principal members within thirty days of the change.

43. Failing to comply with section 7 respecting the use of a practice name.

44. Using in any way with respect to a member’s practice, the name of another member whose practice the member acquired, after a period of one year from the date of the acquisition of the practice.

45. Using a term, title or designation indicating specialization in dentistry in contravention of section 8 or 9.

46. Using or permitting the use of the designation “dental emergency service” or any other designation indicative of the provision of emergency dental care except where,

i. the service,

A. is performed at a location where a member is present and available to render emergency care for not less than sixteen hours each and every day, and

B. has a member available to render emergency dental service for the remaining eight hours in each and every day to attend immediately at the location to which the designation refers or at another location within eight kilometres, or

ii. the service is operated under the sponsorship of a component society of the Ontario Dental Association and is clearly portrayed as such to the public.

47. Contacting or communicating with, or causing or permitting any person to contact or communicate with, potential patients, either in person or by telephone, for the purpose of soliciting patients.

Miscellaneous

48. Contravening a provision of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts.

49. Influencing a patient to change his or her will or other testamentary instrument.

50. Contravening a federal, provincial or territorial law, a municipal by-law or a by-law or rule of a public hospital within the meaning of the Public Hospitals Act, relevant to the provision of dental care to the public.

51. Failing to co-operate with a representative of another College on production of an appointment under section 76 of the Code or to provide access to or provide copies of a record, document, or thing that may be reasonably required for the purposes of an investigation.

52. Failing to comply with an order of a panel of the Discipline Committee or an order of a panel of the Fitness to Practise Committee.

53. Failing to comply with an order of a panel of the Complaints Committee requiring the member to appear before a panel of the Committee to be cautioned.

54. Failing to abide by a written undertaking given by the member to the College or to carry out an arrangement entered into with the College.

55. Failing to pay a fee or amount owed to the College after reasonable notice of payment due has been given to the member.

56. Directly or indirectly benefiting from the practice of dentistry while the member’s certificate of registration is suspended unless full disclosure is made by the member to the College of the nature of the benefit to be obtained and prior approval is obtained from the Executive Committee.

57. Failing to take reasonable steps to ensure that any information provided by or on behalf of the member to the College is accurate.

58. Failing to reply appropriately or within a reasonable time to a written enquiry made by the College.

59. Engaging in conduct or performing an act that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, unprofessional or unethical.

60. Publishing, displaying, distributing, or using or causing or permitting, directly or indirectly, the publication, display, distribution or use of any advertisement, announcement or information related to a member’s practice, which,

i. as a result of its content or method or frequency of dissemination, may be reasonably regarded by members as likely to demean the integrity or dignity of the profession or bring the profession into disrepute,

ii. includes information that,

A. is false, misleading, fraudulent, deceptive, ambiguous or confusing or likely to mislead or deceive the public because, in context, it makes only partial disclosure of relevant facts,

B. is not relevant to the public’s ability to make an informed choice, or

C. is not verifiable by facts or can only be verified by a person’s personal feelings, beliefs, opinions or interpretations,

iii. makes comparisons with another practice or member or would be reasonably regarded as suggestive of uniqueness or superiority over another practice or member, or

iv. is likely to create expectations of favourable results or to appeal to the public’s fears.

61. Publishing, displaying, distributing, or using or causing or permitting, directly or indirectly, the publication, display, distribution or use of any advertisement, announcement or information related to a member’s practice, which makes reference to any area of practice, dental procedure or treatment unless the advertisement, announcement or information discloses whether the member is a specialist or a general practitioner and, if a specialist, in what particular specialty. O. Reg. 853/93, s. 2; O. Reg. 220/94, s. 1.

3. An agreement with a patient shall,

(a) be in writing;

(b) be maintained in or available as part of the patient record;

(c) identify the person or persons entitled to dental services under it and the dental services they are entitled to;

(d) specify particulars of all payments to be made under it including who is responsible for making the payments;

(e) state the period of time it will be in force; and

(f) specify the obligations of the parties in the event that the member is unable to provide the services covered by the agreement, including the obligation to make further payments and the application of payments previously made. O. Reg. 853/93, s. 3.

4. Where the member agrees to provide a course of dental treatment on a fee for service basis and accepts payment in advance of completion of the course of treatment, the member shall,

(a) provide the patient with full particulars of all payments to be made for the course of treatment;

(b) ensure that the agreement with the patient specifies the obligations of the member and the patient in the event that the member is unable to complete the course of treatment, including the obligation to make further payments and the application of payments previously made; and

(c) record the information specified in clauses (a) and (b) in the patient record. O. Reg. 853/93, s. 4.

5. (1) In this section,

“community health centre” means a corporation incorporated without share capital under the Corporations Act, that satisfies the following conditions:

1. The corporation has objects, charitable in nature, permitting the development and maintenance of a community health centre to provide health and dental services.

2. The corporation’s letters patent provide that the corporation shall be carried on without the purpose of gain for its members and any profits or other accretions to the corporation shall be used in promoting its objects.

3. The corporation operates a community health centre that provides health services under an arrangement with the Minister of Health under which the corporation receives funding;

“related corporation” means a corporation wholly or substantially owned or controlled by the member or a related person of the member;

“related person” means any person connected with the member by blood relationship, marriage, common-law or adoption, and,

(a) persons are connected by blood relationship if one is the child or other descendant of the other or one is the brother or sister of the other,

(b) persons are connected by marriage if one is married to the other or to a person who is connected by blood relationship to the other,

(c) persons are connected by common-law if the persons have for a period of not less than three years cohabited in a relationship of some permanence, and

(d) persons are connected by adoption if one has been adopted, either legally or in fact, as the child of the other or as the child of a person who is connected by blood relationship, except as a brother or sister, to the other. O. Reg. 853/93, s. 5 (1).

(2) A member shall not engage in the practice of dentistry where the member has a conflict of interest. O. Reg. 853/93, s. 5 (2).

(3) A member has a conflict of interest where the member or a related person or a related corporation has an arrangement or relationship with a person where a reasonable person could conclude that the exercise of the member’s professional expertise or judgment is or may be influenced by the member’s personal financial interest. O. Reg. 853/93, s. 5 (3).

(4) Without limiting the generality of subsections (2) and (3), a member has a conflict of interest where the member or a related person or a related corporation, directly or indirectly,

(a) enters into any arrangement respecting a lease or use of premises or equipment, under which any amount payable by or to a member or a related person or related corporation is related to the amount of fees charged by the member;

(b) accepts a rebate, credit or other benefit by reason of the member referring a patient to any other person;

(c) offers, makes or confers a rebate, credit or other benefit to a person by reason of the referral of a patient to the member;

(d) offers, makes or confers a rebate, credit or other benefit to a patient other than,

(i) an adjustment in the fee or amount that would otherwise be charged by the member with regard to that patient, or

(ii) the provision to a patient, at no charge, of drugs, dental appliances, dental materials, dental equipment or supplies of a nominal value to be used in maintaining or promoting well-being or oral health;

(e) accepts, makes or confers a rebate, credit or other benefit in respect of drugs and dental appliances, including those intended to be dispensed to patients;

(f) sells or supplies a drug to a patient at a profit;

(g) enters into an agreement or arrangement or causes another member to enter into an agreement or arrangement that prevents or would reasonably be regarded as having the effect of preventing the member from properly exercising his or her professional judgment and skill in respect of the treatment or referral of a patient;

(h) engages in any form of fee or income sharing with any person other than,

(i) an associated member or a member who is the member’s partner,

(ii) a member of the College of Dental Hygienists of Ontario who engages in the practice of dental hygiene within the member’s dental practice; or

(i) engages in the practice of dentistry by employment, association, partnership or otherwise with any person or corporation other than,

(i) a member who is engaged in the practice of dentistry, or

(ii) as an employee or agent of a municipal or other government, an agency of a municipal or other government, a community health centre, university or hospital, provided that the municipal or other government, agency of the municipal or other government, community health centre, university or hospital takes all reasonable steps including co-operating with the College to ensure that the practice of dentistry engaged in by its employees or agent complies with the Act, the Regulated Health Professions Act, 1991 and the regulations under those Acts. O. Reg. 853/93, s. 5 (4).

(5) It is not a conflict of interest if the member discloses his or her financial interest to the patient in advance of providing the service that gives rise to the conflict and the member maintains the standards of practice of the profession relating to the service. O. Reg. 853/93, s. 5 (5).

6. When an associated member and a principal member cease to engage in practice with each other or when a partnership of principal members dissolves,

(a) a principal member shall provide to any patient who requests it the business address and telephone number of the associated member or partner, provided the principal member has or could reasonably obtain the information;

(b) an associated member shall provide to any patient who requests it the business address and telephone number of the principal member, provided the associated member has or could reasonably obtain the information; and

(c) except as otherwise agreed in writing, an associated member or partner shall not solicit or cause or permit the solicitation of the principal member’s patients. This does not include sending an announcement announcing the commencement or change in location of the associated member’s or partner’s practice to patients treated by the associated member or partner, provided that the announcement contains only information that is reasonably necessary to enable a patient to determine the location and nature of the practice of the associated member or partner. O. Reg. 853/93, s. 6.

7. If the member practises under a practice name, he or she shall,

(a) notify the College in writing of the name of every member who engages in practice under the practice name and whether as a principal member or an associated member;

(b) use a practice name that is reasonably referable to and describes the location of the practice or that has been approved by the Executive Committee; and

(c) notify the College in writing of any change in the members who practise under the practice name within thirty days of the change. O. Reg. 853/93, s. 7.

8. (1) A member shall not use a term, title or designation indicating specialization in dentistry or representing to the public that the member is a specialist or is specially qualified in a branch of dentistry or restricts his or her practice to a branch of dentistry, unless the member holds a specialty certificate authorizing practice in the appropriate specialty. O. Reg. 853/93, s. 8 (1).

(2) This does not prevent a member who does not hold a specialty certificate from representing that he or she limits his or her practice to a branch of dentistry if the member clearly indicates at the same time that the member is a general practitioner. O. Reg. 853/93, s. 8 (2).

9. (1) A member shall not use a term, title or designation indicating specialization in any aspect or branch of dentistry other than those branches of dentistry set out in Column 2 of the Table. O. Reg. 853/93, s. 9 (1).

(2) A member who holds a specialty certificate authorizing practice in the branch of dentistry set out in Column 2 of the Table shall not use a title indicating specialization other than the corresponding title referred to in Column 1 of the Table. O. Reg. 853/93, s. 9 (2).

10. Omitted (provides for coming into force of provisions of this Regulation). O. Reg. 853/93, s. 10.

TABLE

Column 1	Column 2
Title	Branch of Dentistry
endodontist	endodontics
oral and maxillofacial surgeon	oral and maxillofacial surgery
oral pathologist	oral pathology
oral radiologist	oral radiology
orthodontist	orthodontics
paediatric dentist	paediatric dentistry
periodontist	periodontics
prosthodontist	prosthodontics
public health dentist	public health dentistry

O. Reg. 853/93, Table.