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O. Reg. 130/17: PROFESSIONAL MISCONDUCT AND CONFLICT OF INTEREST

filed May 5, 2017 under Pharmacy Act, 1991, S.O. 1991, c. 36

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ontario regulation 130/17

made under the

Pharmacy Act, 1991

Made: January 31, 2017
Approved: May 3, 2017
Filed: May 5, 2017
Published on e-Laws: May 5, 2017
Printed in The Ontario Gazette: May 20, 2017

Professional Misconduct and Conflict of Interest

Part I
Professional Misconduct

Interpretation

1. In this Part,

“Schedule II” and “Schedule III” mean Schedule II and Schedule III as established in Ontario Regulation 264/16 (General) made under the Drug and Pharmacies Regulation Act; (“annexe II”, “annexe III”)

“sell” includes distribute, give away, supply or offer to sell, distribute, give away or supply, and “sale” has a corresponding meaning. (“vendre”, “vente”)

Acts of professional misconduct

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

The Practice of the Profession and the Care of, and Relationship with, Patients

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

2. Failing to maintain a standard of practice of the profession.

3. Failing to advise a patient or the patient’s authorized representative to consult another member of a health profession within the meaning of the Regulated Health Professions Act, 1991, where the member knows or ought to know that the patient requires a service that the member does not have the knowledge, skill or judgment to offer or is beyond his or her scope of practice.

4. Performing a professional service that the member knows or ought to know he or she does not have the knowledge, skill or judgment to perform.

5. Abusing a patient emotionally, verbally or physically.

6. Practising the profession while the member’s ability to do so is impaired or adversely affected by any substance, condition, dysfunction, disorder or circumstance that the member knows or ought to know impairs or adversely affects his or her ability to practise.

7. Performing a controlled act that is otherwise authorized to the member where the performance of that act is for an improper purpose.

8. Discontinuing professional services that are needed unless the discontinuation would reasonably be regarded by members as appropriate having given consideration to,

i. the member’s reasons for discontinuing the services,

ii. the condition of the patient,

iii. the availability of alternate services, and

iv. the opportunity given to the patient to arrange alternate services before the discontinuation.

9. Practising the profession while the member is in a conflict of interest as described in Part II.

10. Breaching an agreement with a patient or a patient’s representative relating to professional services for the patient or fees for such services.

11. Failing to provide an appropriate level of supervision to a person whom the member is professionally obligated to supervise.

Representations about Members

12. Inappropriately using a term, title or designation in respect of the member’s practice.

13. Inappropriately using a term, title or designation indicating or implying a specialization in the profession.

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

Record Keeping and Reports

15. Failing to keep records as required respecting the member’s patients or practice.

16. Falsifying a record relating to the member’s practice or a person’s health record.

17. Signing or issuing, in the member’s professional capacity, a document that the member knows or ought to know contains a false or misleading statement.

18. Failing to keep confidential personal health information or other personal information concerning a patient, except with the consent of the patient or the patient’s authorized representative or as permitted or required by law.

19. Accessing a person’s health record without a professional reason to do so.

Business Practices

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

21. Charging a fee or amount that is excessive in relation to the service or product provided.

22. Entering into any agreement that restricts a person’s choice of a pharmacist without the consent of the person.

Miscellaneous Matters

23. Contravening the Act, the Drug and Pharmacies Regulation Act, the Regulated Health Professions Act, 1991, the Narcotics Safety and Awareness Act, 2010, the Drug Interchangeability and Dispensing Fee Act or the Ontario Drug Benefit Act or the regulations under those Acts.

24. Permitting, consenting to or approving, either expressly or by implication, any act that contravenes Part V of Ontario Regulation 264/16 (General) made under the Drug and Pharmacies Regulation Act.

25. Soliciting or permitting the solicitation of an individual in person, by telephone, electronic communications or other means unless,

i. the person who is the subject of the solicitation is advised, at the earliest possible time during the communication, that,

A. the purpose of the communication is to solicit use of the member’s professional services, and

B. the person may elect to have the member end the solicitation immediately or at any time during the solicitation if he or she wishes to do so, and

ii. the solicitation ends immediately if the person who is the subject of the solicitation so elects.

26. Contravening any federal, provincial or territorial law or municipal by-law,

i. with respect to the distribution, purchase, sale, or dispensing or prescribing of any drug or product, the administering of any substance, or the piercing of the dermis,

ii. whose purpose is to protect or promote public health, or

iii. that is otherwise relevant to the member’s suitability to practise.

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

28. Returning to stock or re-selling or re-dispensing a drug that was previously sold or dispensed. However, it will not be professional misconduct for a member to,

i. return to stock or re-sell or re-dispense a drug that does not require refrigeration, that is listed on Schedule II or Schedule III and that is in its original, unopened packaging, or

ii. accept the return of a drug from a patient for purposes of re-packaging and re-dispensing the drug to the same patient, as long as the drug is suitable for re-packaging.

29. Dispensing, selling or compounding a drug, or administering a substance, that the member knows or ought to know is not of good quality or does not meet the standards required by law or, in the case of a drug, does not contain a substance that the drug is meant to contain.

30. Knowingly permitting the premises in which a pharmacy is located to be used for unlawful purposes, where such purposes may reasonably be regarded by members as likely to demean the integrity or dignity of the profession or bring the profession into disrepute.

31. Permitting, consenting to, approving, counselling or assisting, whether expressly or by implication, the commission of an offence against any Act relating to the practice of pharmacy or the sale of drugs.

32. Permitting, counselling or assisting, whether expressly or by implication, any member to contravene, or to practise in a manner that is inconsistent with, a term, condition or limitation on that member’s certificate of registration.

33. Failing to co-operate with an inspector of the College appointed for purposes of the Drug and Pharmacies Regulation Act.

34. Failing to reply within a reasonable time to a written or electronic inquiry or request from the College.

35. Failing to comply with an order of a Committee or a panel of a Committee of the College.

36. Failing to appear before a panel of the Inquiries, Complaints and Reports Committee to be cautioned.

37. Failing to carry out or abide by an undertaking given to the College or breaching an agreement with the College, a Committee of the College or the Registrar. 

38. Practising the profession while the member’s certificate of registration is under suspension.

39. Engaging in conduct or performing an act relevant to the practice of pharmacy that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

40. Engaging in conduct that is unbecoming a member.

(2) A member shall be deemed to have committed an act of professional misconduct if the governing body of a health profession in a jurisdiction other than Ontario has made a finding of incompetence or professional misconduct or a similar finding against the member, and the finding is based on facts which would, in the opinion of the College, be grounds for a finding of incompetence as defined in section 52 of the Health Professions Procedural Code or would be an act of professional misconduct as described in clause 51 (1) (a), (b.0.1), (b.1) or (c) of the Health Professions Procedural Code.

(3) A member shall be deemed to have committed an act of professional misconduct if,

(a) the governing body of a health profession in a jurisdiction other than Ontario has provided records to the College evidencing that an allegation of professional misconduct or incompetence or a similar allegation has been made against the member and he or she has entered into an agreement or compromise with the governing body in order to settle the matter without a finding of misconduct or incompetence or a similar finding being made;

(b) the College is satisfied that the records are authentic, accurate and complete; and

(c) the act or omission that is the subject of the allegation would, in the opinion of the College, be grounds for a finding of incompetence as defined in section 52 of the Health Professions Procedural Code or would be an act of professional misconduct as described in clause 51 (1) (a), (b.0.1), (b.1) or (c) of the Health Professions Procedural Code.

Part II
Conflict of Interest

Interpretation

3. In this Part,

“benefit” means any incentive or inducement of more than nominal value, whether direct or indirect, and includes a rebate, credit or gift; (“avantage”)

“child” means a child within the meaning of the Family Law Act; (“enfant”)

“non-arm’s length relationship” means a relationship between two parties such that one party has the ability to exercise, directly or indirectly, control or significant influence over the operating and financial decisions of the other party and includes a relationship between a member and a related person or a related corporation; (“lien de dépendance”)

“parent” means a parent within the meaning of the Family Law Act; (“père ou mère”)

“prescriber” means a person who is authorized under the laws of a province or territory of Canada to give a prescription within the scope of his or her practice of a health discipline; (“personne autorisée à prescrire des médicaments”)

“related corporation” means a corporation wholly or substantially owned or controlled, whether directly or indirectly, by a member or a related person of the member; (“personne morale liée”)

“related person” means any person who has one of the following relationships to the member or to the spouse of the member, whether based on blood, marriage, common-law or adoption:

1. A child or the spouse of a child.

2. A grandchild or the spouse of a grandchild.

3. A parent or the spouse of a parent.

4. A grandparent or the spouse of a grandparent.

5. A sibling or the spouse of a sibling; (“personne physique liée”)

“spouse” means,

(a) a spouse within the meaning of the Family Law Act, or

(b) either of two persons who live together in a conjugal relationship outside marriage. (“conjoint”)

Conflict of interest

4. (1) A member shall not practise the profession while in a conflict of interest.

(2) A member shall not participate in an arrangement that constitutes a conflict of interest under this Part, even if the arrangement is initiated by a partner, associate, employer, patient or other person.

When conflict exists

5. A member is in a conflict of interest if the member’s personal or financial interest, or the personal or financial interest of another person who is in a non-arm’s length relationship with the member conflicts, appears to conflict or potentially conflicts with the member’s professional or ethical duty to a patient or the exercise of the member’s professional judgment.

Examples of being in conflict

6. Without limiting the generality of section 5, a member is in a conflict of interest when the member or another person who is in a non-arm’s length relationship with the member, directly or indirectly,

(a) requests, accepts or receives a benefit by reason of the referral of a patient to any other person;

(b) offers, makes or confers a benefit to a person by reason of the referral of a patient to the member or to a pharmacy in which the member is employed, with which the member is associated or in which the member has a financial interest;

(c) offers, makes or confers a benefit to a patient in relation to the sale of a drug or the provision of professional pharmacy services other than,

(i) an adjustment in the fee or amount that would otherwise be charged with regard to that patient for that drug or that professional pharmacy service, or

(ii) the provision to a patient, at no charge, of an item of a nominal value, to be used in maintaining or promoting well-being or health;

(d) enters into any agreement or arrangement that influences or encourages, or appears to influence or encourage, a prescriber to promote the services of the member or of any pharmacy in which the member is employed, with which the member is associated or in which the member has a financial interest; or

(e) enters into any agreement or arrangement that adversely influences or appears to adversely influence the exercise of his or her professional expertise or judgment or his or her ability to engage in the practice of the profession in an ethical manner or in accordance with the standards of practice of the profession.

Examples of not being in conflict

7. (1) A member is not in a conflict of interest in connection with the referral of a patient to a person who is in a non-arm’s length relationship with the member if no direct benefit is received by the member and, if, before making the referral, the member discloses to the patient the nature of the relationship between the member and the person in the non-arm’s length relationship.

(2) A member is not in a conflict of interest in connection with the referral of a patient to the member from a person who is in a non-arm’s length relationship with the member if no direct benefit is conferred by the member and, if, before the member provides any pharmacy services, the member discloses to the patient the nature of the relationship between the member and the person in the non-arm’s length relationship.

(3) A member is not in a conflict of interest in connection with the paying of rent with respect to the lease of premises in which the member practices the profession if the rent charged reflects the normal rent payable for the same type of premises in the same geographical area.

(4) A member is not in a conflict of interest in connection with the member or a related person or a related corporation having a financial interest in the manufacturer, vendor or supplier of a drug or substance if,

(a) the fact of the financial interest is disclosed to the patient prior to the member providing pharmacy services in relation to the drug or substance; or

(b) the manufacturer, vendor or supplier of the drug or substance is a corporation, the shares of which are publicly traded through a stock exchange, and neither the member, a related person or a related corporation, or any combination of them, wholly or substantially owns the corporation or has the ability to exercise, directly or indirectly, control or significant influence over its operating or financial decisions.

Part III
revocation and commencement

Revocation

8. Ontario Regulation 681/93 is revoked.

Commencement

9. This Regulation comes into force on the day it is filed.

Made by:
Pris par :

Council of the Ontario College of Pharmacists:
Le Conseil de l’Ordre des pharmaciens de l’Ontario :

Regis Laillancourt

President /
Président

Nancy Lum-Wilson

CEO and Registrar

Date made:January 31, 2017
Pris le : 31 janvier 2017

 

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