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Physiotherapy Act (2 of 2)

(d) direct the owner of any premises, or person in possession of any premises, or any bank or other depository of client records to deal with, hold, deliver or dispose of such client records as the court directs;

(e) give directions to the custodian as to the disposition of client records;

(f) make provision for the remuneration, disbursements and indemnification of the custodian in the course of the custodians duties;

(g) make provision for the discharge of a custodian either before or after completion of the responsibilities imposed upon the custodian by any order made pursuant to this Section; and

(h) give such further directions as the court considers are required in the circumstances.

(5) Unless the court otherwise directs, it is sufficient for the custodian to give notice by newspaper advertisement to clients, physiotherapists or the general public that the custodian has possession of the client records of a member.

(6) Subject to any order of the court, or where one year has passed from the date of the court order appointing the custodian, whichever is earlier, the custodian shall report to the Board, which may discharge the custodian or make any order it deems appropriate regarding any client records remaining in the hands of the custodian, and the custodian's compliance with the order of the Board discharges the custodian in respect of those client records affected.

(7) Unless otherwise ordered pursuant to subsection (6), upon discharge of a custodian pursuant to subsections (6) and (9), the College shall take into permanent custody client records and assume the responsibilities of a custodian as provided in subsection (3).

(8) The College may destroy records after the passage of a minimum period of time as ordered by the court or as set by regulations.

(9) The court may, upon the application of the College made either ex parte or on such notice as the court directs, remove a custodian from office and, where the court deems it expedient, appoint another custodian in the custodians place, and may include in such order such further directions as are required in the circumstances.

(10) A member in respect of whom an order has been made pursuant to this Section may, after giving notice to the College and to the custodian, apply to the court to vary or set aside an order made pursuant to this Section and to direct the custodian to place all or part of the client records back into the possession of the member upon such terms as may be just.

(11) The court may give directions as to service of any notice required or order made pursuant to this Section.

(12) No action for damages lies against the College, the Board or any committee, member, officer or employee of the College for anything done or omitted to be done in good faith pursuant to this Section, or against a custodian or any other person acting in good faith pursuant to this Section or an order issued pursuant to this Section.

(13) This Section applies mutatis mutandis to former members of the College.

INJUNCTION

40 (1) Where a member whose licence to practise has been suspended pursuant to this Act or the regulations does or attempts to do anything contrary to this Act or the regulations, the doing of such thing may be restrained by an injunction of the court at the instance of the Board.

(2) Where a person other than a member does or attempts to do anything contrary to this Act, the doing of such thing may be restrained by an injunction of the court at the instance of the Board.

DISCIPLINE

41 Complaints may be initiated by

(a) any official body corporate or association;

(b) the Registrar; or

(c) any other person.

42 The College or a disciplinary committee may employ, at the expense of the College, such legal or other assistance as it considers necessary for the purpose of the investigation of any disciplinary matter.

43 Every person involved in the administration of this Act and any member of the Board, or a committee of the Board or the College, shall maintain confidentiality with respect to all health information that comes to that persons knowledge regarding clients and with respect to all matters that come to that persons knowledge relating to a peer assessment, except

(a) in connection with the administration of Sections 41 to 63, and the regulations or proceedings thereunder;

(b) to one's own legal counsel;

(c) as otherwise required by law; or

(d) with the consent of the person to whom the information relates.

44 A person or disciplinary committee investigating a disciplinary matter concerning a member may investigate any other disciplinary matter concerning the member that arises in the course of the investigation.

45 (1) Where a disciplinary committee

(a) learns that the registration or licence of a member has been suspended or revoked for reasons of professional misconduct, conduct unbecoming or incompetence by another licensing or regulatory authority;

(b) has provided the member with such notice as it may prescribe of a hearing together with a copy of the relevant decision of the other licensing or regulatory authority; and

(c) has heard such evidence as is offered by the member, if any, at the hearing as to why the member should not be subject to disciplinary action,

the disciplinary committee may take any of the actions contemplated by clause 60(2)(e).

(2) Where a member has been convicted of an offence pursuant to the Criminal Code (Canada)or the Narcotics Control Act (Canada) or has been convicted of an offence as referred to in Section 24, the disciplinary committee may, by such notice as it prescribes, require the member to attend a hearing to establish why the member should not be subject to disciplinary action.

(3) For the purpose of subsection (2), a certificate of conviction of a member is conclusive evidence that a person has committed the offence stated therein unless it is shown by the member that the conviction has been quashed or set aside.

(4) When a disciplinary committee is conducting a hearing pursuant to this Section, it may, if it deems proper, take any of the actions contemplated by clause 60(2)(e).

INVESTIGATION COMMITTEE

46 (1) The Board shall appoint a committee or committees to be known as an investigation committee.

(2) An investigation committee shall be composed of at least three persons.

(3) A committee shall

(a) have a chair appointed by the Board who is a member or former member of the Board;

(b) have as a member at least one person who is a member or former member of the Board and a member of the College; and

(c) have as a member at least one person does not hold a degree of physiotherapy or equivalent, who may be a member or former member of the Board.

(4) Notwithstanding subsection (3), any two members of the committee constitute a quorum.

(5) The Board may appoint additional members to the committee who are members of the College but who need not be members or former members of the Board.

(6) The committee shall

(a) investigate complaints regarding a disciplinary matter concerning any member of the College;

(b) investigate any matter referred to the committee by the Registrar; and

(c) perform such other duties as may be assigned to it by the Board.

(7) The Registrar may refer a matter to the committee notwithstanding that a written complaint has not been filed with the Registrar.

(8) Without receipt of a written complaint, the committee may

(a) do all things necessary to provide a full and proper investigation;

(b) appoint a person or persons to conduct an investigation or practice audit, or both.

(9) Upon receipt of a written complaint and upon giving to the member a copy of the complaint, the committee may require the member to

(a) submit to physical or mental examinations by such qualified persons as the committee designates;

(b) submit to an inspection or audit of the practice of the member by such qualified persons as the committee designates;

(c) submit to such examinations as the committee directs to determine whether the member is competent to practise physiotherapy;

(d) produce records and accounts kept with respect to the member's practice.

(10) Where the member fails to comply with subsection (9), the committee may suspend or restrict the registration, licence or specialist's licence, or both, of the member until the member complies.

(11) Where the committee has, pursuant to clause (9)(a), (b) or (c), required a member to submit to physical or mental examinations or submit to inspection or audit of the practice by a qualified person designated by the committee, the committee shall deliver to the member any report it receives from the designated qualified person.

(12) The committee or person appointed to conduct an investigation pursuant to clause (8)(b) may

(a) employ such other experts as the committee or person deems necessary;

(b) require the member or any other member of the College, who may have information relevant to the investigation, to attend before the committee or the person conducting the investigation to be interviewed;

(c) investigate any other matter relevant to the conduct, capacity or fitness of a member to practise physiotherapy that arises in the course of the investigation.

(13) The committee may

(a) dismiss the complaint;

(b) attempt to resolve the matter informally;

(c) with the consent of both parties, refer the matter, in whole or in part, to mediation;

(d) refer the matter, in whole or in part, to a hearing committee;

(e) counsel the member;

(f) caution the member;

(g) counsel and caution the member;

(h) reprimand the member with the member's consent; or

(i) with the consent of the member, require the member to undergo such treatment or re-education as the committee considers necessary.

(14) Where the committee is considering a decision to counsel, caution or counsel and caution a member pursuant to clause (13)(e), (f) or (g), the committee shall give notice to the member and the member shall be given the opportunity to appear, with or without legal counsel, before the committee prior to the committee making a decision.

(15) A member who has consented to a requirement for treatment or re-education pursuant to clause (13)(i) may consent to such requirement in principle, while reserving the right to appeal the actual content of the requirement for treatment or re-education to a hearing committee within fifteen days of receiving notice thereof.

(16) Parties to an appeal pursuant to subsection (15) shall bear their own costs.

(17) An appeal pursuant to subsection (15) shall be conducted without oral testimony and a hearing committee shall review an agreed statement of facts supplied by the legal counsel for the College and signed by the member.

(18) Where an agreed statement of facts is not filed within thirty days of filing the notice of appeal, the consent of the member is deemed to have been withdrawn and the matter referred back to the investigation committee which may consider other actions or dispositions as authorized by this Act.

(19) When making findings pursuant to clauses (13)(e), (f), (g), (h) or (i), a committee may make any combination of the dispositions that are set out in those clauses, or the committee may make such other dispositions as it considers appropriate, in accordance with the objects of this Act.

(20) The member and the complainant shall be advised in writing of the disposition of the committee.

47 (1) Notwithstanding anything contained in this Act, where

(a) an investigation committee receives information that indicates that a member may be incompetent or guilty of professional misconduct or conduct unbecoming; and

(b) the investigation committee concludes that it is in the public interest to suspend from practice or restrict the practice of the member,

the investigation committee may, without a hearing,

(c) immediately suspend the registration or licence or specialists licence, or both, of the member on a temporary basis; or

(d) immediately impose restrictions on the registration or licence or specialists licence, or both, of the member on a temporary basis.

(2) The member shall receive forthwith notice in writing, with reasons, of a decision made pursuant to subsection (1).

(3) Subject to a determination pursuant to subsection (5), a decision pursuant to subsection (1) continues in force until final resolution by a hearing committee which shall occur without undue delay.

(4) The member who receives written notice pursuant to subsection (2) may request, in writing, an opportunity to meet with the investigation committee.

(5) Where a request is received pursuant to subsection (4), the investigation committee shall

(a) provide an opportunity for the member to meet with the committee within ten days of the written request; and

(b) after meeting with the member, may confirm, vary or terminate the suspension or restrictions imposed pursuant to subsection (1).

48 Notwithstanding anything contained in this Act, where a decision is made pursuant to subsection 47(1), subject to any disposition made pursuant to subsection 47(5), a hearing committee shall be appointed pursuant to subsection 52(1) to proceed with a hearing to determine whether the member is guilty of charges relating to a disciplinary matter.

49 Notwithstanding that a member or members of an investigation committee or a hearing committee have ceased to hold office by reason of the lapse of their appointments, such member or members are seized with the jurisdiction to complete any matter the committees have commenced if necessary to retain a quorum and, for this purpose, such member or members continue to have the same powers, privileges, immunities and duties as are provided by this Act and the regulations.

SETTLEMENT AGREEMENT

50 (1) After an investigation committee refers a matter to a hearing committee pursuant to clause 46(13)(d), the member complained of may, at any time prior to the commencement of the hearing, tender to the investigation committee a proposed settlement agreement, in writing, consented to by legal counsel for the College that includes an admission of a disciplinary matter violation or violations and the member's consent to a specified disposition, conditional upon the acceptance of the agreement by a hearing committee.

(2) The investigation committee may, in its discretion, recommend or refuse to recommend acceptance of the proposed settlement agreement by the hearing committee.

(3) Where the investigation committee recommends the acceptance of the proposed settlement agreement, it shall instruct legal counsel for the College to advise the hearing committee hearing the complaint of its recommendation.

(4) Where the investigation committee refuses to recommend the proposed settlement agreement, the hearing shall proceed without reference to the proposed settlement agreement.

(5) Where the hearing committee appointed to hear the complaint accepts the recommendation of the investigation committee, it shall confirm such acceptance by written decision that incorporates the settlement agreement.

(6) Where the hearing committee appointed to hear the complaint rejects the recommendation of the investigation committee,

(a) it shall advise the Registrar of its decision;

(b) it shall proceed no further with the hearing of the complaint;

(c) a new hearing committee shall be appointed to hear the complaint and no member of the committee that considered the proposed settlement agreement shall be a member of the new committee; and

(d) the investigation committee retains jurisdiction over a complaint until the commencement of the hearing by a hearing committee.

INVESTIGATION COMMITTEE AND NON-MEMBERS

51 The Registrar may request the committee to investigate the activities of a non-member but the committee has no compulsory powers in relation to the investigation of the non-member, except that the committee may require a member who may have information relevant to the investigation to attend before the committee or the person conducting the investigation to be interviewed.

HEARING COMMITTEE

52 (1) A hearing committee shall be appointed for the purpose of hearing any charges relating to a disciplinary matter against a member when a disciplinary matter is referred, in whole or in part, to a hearing committee.

(2) A hearing committee shall be composed of at least three persons of whom one member shall be appointed by the Board as the chair.

(3) The committee shall have as members

(a) at least one person who does not hold a degree in physiotherapy or equivalent, who is a member of the Board; and

(b) at least two members of the Board.

(4) Notwithstanding subsection (3), any two members of the committee constitute a quorum.

(5) Subject to the regulations, the hearing committee may do all things necessary to provide a full and proper inquiry.

(6) In a matter over which a hearing committee has jurisdiction, the hearing committee and each member of the committee has all the powers, privileges and immunities of a commissioner appointed pursuant to the Public Inquiries Act.

(7) Upon the application of

(a) any party to the hearing;

(b) the chair of the hearing committee; or

(c) legal counsel for the College or hearing committee,

the Registrar of the College shall sign and issue a summons to witness for the purpose of procuring the attendance and evidence of witnesses before the hearing committee.

(8) It is the duty of the member who is charged in a disciplinary matter to appear at the hearing but in the event of non-attendance by such member, the hearing committee, upon proof by affidavit, statutory declaration or other evidence acceptable to the hearing committee of service of the notice, pursuant to subsection (9), may proceed with the hearing and, without further notice to such member, render its decision and take such other action as it is authorized to take pursuant to this Act.

(9) Unless the member has agreed to a shorter notice period, a notice of hearing shall be served at least thirty days before the holding of the hearing upon the member whose disciplinary matter is being heard.

(10) A notice of a hearing shall state the details of the charges and the time and place of the holding of the hearing, and shall be signed by the Registrar.

(11) The College shall place the notice as provided for in subsection (10) in such publications as it deems necessary in order to inform the public.

53 (1) The following evidence is not admissible before a hearing committee unless the opposing party has been given, at least ten days before the hearing,

(a) in the case of written or documentary evidence, an opportunity to examine the evidence;

(b) in the case of evidence of an expert, a copy of the expert's written report or, where there is no written report, a written summary of the evidence; or

(c) in the case of evidence of a witness, the identity of the witness.

(2) Notwithstanding subsection (1), a hearing committee may, in its discretion, allow the introduction of evidence that would be otherwise inadmissible under subsection (1) and may make directions it considers necessary to ensure that a party is not prejudiced.

54 No member of a hearing committee holding a hearing shall communicate outside the hearing, in relation to the subject-matter of the hearing, with a party or the partys representative unless the other party has been given notice of the subject-matter of the communication and an opportunity to be present during the communication, with the exclusion of communications where the sole purpose is to make administrative arrangements.

55 Where a hearing committee obtains expert opinion regarding physiotherapy with respect to a hearing, it shall make the nature of the opinion known to the parties and the parties may make submissions with respect to the opinion.

56 (1) Subject to subsection (2), a hearing shall be open to the public.

(2) The hearing committee may make an order that the public, in whole or in part, be excluded from a hearing or any part of it if the hearing 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 of such a nature that the desirability of avoiding public disclosure of those matters in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public; or

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

(3) Where it thinks fit, the hearing committee may make orders it considers necessary to prevent the public disclosure of matters disclosed at a hearing, including orders prohibiting publication or broadcasting of those matters.

(4) No order shall be made under subsection (3) that prevents the publication of anything that is contained in the Register and available to the public.

(5) The hearing committee may make an order that the public be excluded from the part of a hearing dealing with a motion of an order pursuant to subsection (2).

(6) The hearing committee may make any order necessary to prevent the public disclosure of matters disclosed in the submission relating to any motion described in subsection (5), including prohibiting the publication or broadcasting of those matters.

(7) Subject to any orders pursuant to this Section, the hearing committee shall state, at the hearing, its reasons for any order made pursuant to this Section.

57 Where a hearing committee makes an order pursuant to subsection 56(2), wholly or partly, because of the desirability of avoiding disclosure of matters in the interest of a person affected,

(a) the committee shall allow the parties, the complainant and their legal and personal representatives; and

(b) the committee may allow such other persons as the committee considers appropriate,

to attend the hearing.

58 A hearing committee shall, on the request of a witness, other than the member, whose testimony is in relation to allegations of misconduct of a sexual nature by a member involving the witness, make an order that no person shall publish the identity of the witness or any information that could disclose the identity of the witness.

59 (1) The hearing committee holding a hearing shall ensure that

(a) the oral evidence is recorded;

(b) copies of the transcript of the hearing are available to a party at the partys request and expense, the complainant at the complainants request and expense and other persons the hearing committee or the Registrar considers appropriate at those persons request and expense; and

(c) copies of the transcript of any part of the hearing that is not closed nor the subject of an order prohibiting publication are available to any person at that persons expense.

(2) Where a transcript of a part of a hearing that is the subject of an order for a closed hearing or an order prohibiting publication is filed with a court in respect of proceedings, only the court, the parties to the proceedings and the complainant may examine it unless the court or the hearing committee orders otherwise.

60 (1) At a hearing of the hearing committee, a member is entitled to all the rights of natural justice, including the right to be represented by legal counsel, to know all the evidence considered by the hearing committee, to present evidence and to cross-examine witnesses.

(2) A hearing committee

(a) shall hear each case in such manner as it deems fit;

(b) may require the member to

(i) submit to physical or mental examinations by such qualified persons as the committee designates,

(ii) submit to an inspection or audit of the members practice by such qualified persons as the committee designates,

(iii) undergo such examinations as the hearing committee directs to determine whether the member is competent to practise physiotherapy, and

(iv) produce records and accounts kept with respect to the members practice;

(c) where the member fails to comply with clause (b), may resolve that the registration or licence or specialist's licence, or both, of the member be suspended until the member does;

(d) where the committee has, pursuant to subclause (b)(i), (ii) or (iii), required a member to submit to physical or mental examinations, or submit to inspection or audit of the practice by a qualified person designated by the committee, shall deliver to the member any report it receives from the designated qualified person;

(e) shall determine whether the member is guilty of charges relating to a disciplinary matter, and

(i) where there is a guilty finding, may determine that
(A) the registration or licence or specialist's licence, or both, of the member be revoked and that members name be stricken from the registers in which it is entered,

(B) the licence or specialist's licence, or both, of the member be suspended

(I) for a fixed period, or

(II) for an indefinite period until the occurrence of some specified future event or until compliance with conditions prescribed by the committee,

(C) conditions, limitations or restrictions be imposed on the licence or specialist's licence, or both, of the member,

(D) the member undergo such treatment or re-education as the committee considers necessary,

(E) such fine as the committee considers appropriate to a maximum of fifteen thousand dollars be paid by the member to the College for the purpose of funding physiotherapy education and research as determined by the Board,

(F) the member be reprimanded,

(G) such other disposition as it considers appropriate be imposed, or

(ii) where there is a not guilty finding, the committee may dismiss the charges; and
(f) shall file its decision, including reasons, at the offices of the College.

(3) When making dispositions pursuant to clause (2)(e), the committee may impose one or more of the penalties that are set out in that clause, or the committee may make such other dispositions as it considers appropriate, in accordance with the objects of this Act.

(4) The Registrar shall provide the member, the complainant and such other persons as the Registrar considers appropriate with a copy of the decision of the hearing committee except that, where there are references identifying clients or other persons other than the complainant, those references as well as other personal information about those persons shall be deleted where, in the Registrars opinion, it is appropriate.

(5) The decision of a hearing committee has effect immediately upon service on the member or from such time as the decision may direct.

(6) The hearing committee shall release documents and things put into evidence at a hearing to the person who produced them, on request, within a reasonable time after the matter in issue has been finally determined.

COSTS

61 (1) When a hearing committee finds a member guilty of charges relating to a disciplinary matter, it may order that the member pay the costs of the Board, in whole or in part.

(2) When a member is ordered to pay costs pursuant to subsection (1), the Board may make it a condition of the registration or licence of the member that such costs be paid forthwith, or at such time and on such terms as the Board may fix.

(3) For the purpose of this Section, "costs of the Board" include

(a) expenses incurred by the College, the Board, the investigation committee and the hearing committee;

(b) honoraria paid to members of the investigation committee and the hearing committee; and

(c) solicitor and client costs and disbursements of the College relating to the investigation and hearing of the complaint.

APPEAL

62 (1) The member complained against may appeal on any point of law from the findings of the hearing committee to the Nova Scotia Court of Appeal.

(2) The notice of appeal shall be served upon the Registrar and the complainant.

(3) The record on appeal from the findings of a hearing committee shall consist of a copy of the transcript of the proceedings, the decision of the committee and the evidence before the hearing committee certified by the chair of the hearing committee.

(4) The Civil Procedure Rules governing appeals from the Supreme Court of Nova Scotia to the Nova Scotia Court of Appeal that are not inconsistent with this Act apply mutatis mutandis to appeals to the Nova Scotia Court of Appeal pursuant to this Section.

(5) Where a matter is appealed to the Nova Scotia Court of Appeal pursuant to this Section, the Nova Scotia Court of Appeal has jurisdiction to, pending a decision by the Nova Scotia Court of Appeal, grant a stay of any order made pursuant to this Act where, in its discretion, it deems it fit.

REINSTATEMENT

63 (1) A person whose licence or specialist's licence has been revoked by a resolution of a hearing committee pursuant to subclause 60(2)(e)(i), may apply to the Board for

(a) the entering of the persons name, address and qualifications on the Register or Defined Register and, if applicable, the Specialists Register;

(b) the issuance of a licence; and

(c) the issuance of a specialist's licence in any specialty in which the person held a specialist's licence at the time of such resolution of the hearing committee.

(2) An application pursuant to subsection (1) shall not be made earlier than

(a) two years after the revocation; and

(b) six months after the previous application.

(3) The Board, upon

(a) being satisfied that the interest of the public has been adequately protected;

(b) being satisfied as to the intention of such person to practise physiotherapy in the Province;

(c) being satisfied as to the activities of such person since the time of the resolution of the hearing committee;

(d) such person producing a letter of good standing from all jurisdictions in which the person had practised physiotherapy since the date of such resolution of the hearing committee; and

(e) such person undergoing such clinical or other examinations as the Board may designate,

may direct the Registrar to

(f) enter the name, address and qualifications of such person in the Register or Defined Register and, where applicable, the Specialists Register;

(g) issue a licence to such person; and

(h) enter the name, address, qualifications and specialties of such person in the Specialists Register, and issue a specialist's licence to the person in any specialty in which the person held a specialists licence at the time of the resolution of the hearing committee pursuant to subsection 60(2)(e)(i),

upon such terms and conditions as the Board may direct.

PEER ASSESSMENT

64 (1) In this Section and in Sections 65 and 73,

(a) "assessment" means an assessment pursuant to a peer-assessment program established pursuant to this Section;

(b) "assessors" means the assessors appointed by the Peer Assessment Committee pursuant to subsection (4).

(2) The Board shall establish a Peer Assessment Committee in accordance with the regulations.

(3) The Board may, by regulation or otherwise,

(a) authorize the Peer Assessment Committee to do or cause to be done on behalf of the parties any or all such things as the parties thereto are otherwise empowered to do and deem necessary for the development and administration of a peer-assessment program, subject to the approval of the Board;

(b) provide for the financing of the operations of the Peer Assessment Committee and for cost-sharing arrangements;

(c) provide for the preparation of an annual budget and its approval by the Board;

(d) provide for the incorporation of the Peer Assessment Committee if considered advisable to achieve the objectives of the Committee; and

(e) do such other things as may be necessary or desirable to provide for the administration of the Peer Assessment Committee and for its operations.

(4) The Peer Assessment Committee may appoint members of the College or persons licensed as physiotherapists in other provinces as assessors for the purpose of the application of the peer-assessment program to members of the College.

(5) Subject to the approval of the Board, the Peer Assessment Committee shall develop and administer a peer-assessment program including

(a) the assessment of the standards of practice of members including, but not limited to,

(i) standards for the clinical assessment and care of clients, and

(ii) standards for the maintenance of records of care administered to clients;

(b) the selection and education of assessors;

(c) communication with physiotherapists;

(d) budgetary and expense arrangements;

(e) the preparation of assessment reports;

(f) the development of policy and procedures of the Peer Assessment Committee and their delegation to subcommittees, assessors or employees as the Committee deems appropriate; and

(g) such further activities, including the establishment of other committees or subcommittees, for the better administration of the peer-assessment program.

(6) Every member whose standards of practice are the subject of an assessment shall co-operate fully with the Peer Assessment Committee and assessors.

(7) Without limiting the generality of the co-operation required by subsection (6), a member shall

(a) permit assessors to enter and inspect the premises where the member engages in the practice of medicine;

(b) permit the assessors to inspect the member's records of care administered to clients;

(c) provide to the Peer Assessment Committee and assessors, in the form required, information requested by the Committee or assessors, as the case may be, in respect of the clinical assessment and care of clients by the member or the member's records of care administered to clients;

(d) confer with the Peer Assessment Committee or assessors when required to do so by the Committee or assessors;

(e) permit the re-assessments the Peer Assessment Committee or assessors deem necessary for the proper administration of a peer-assessment program; and

(f) comply with the remedial recommendations of the Peer Assessment Committee.

(8) Upon completion of an assessment, an assessor shall report to the Peer Assessment Committee which may

(a) receive the report of the assessor and make no recommendations to the member assessed; or

(b) confer with the member assessed and make any remedial recommendations to the member as the Committee considers appropriate, and direct the member to comply with the recommendations.

(9) Costs incurred by the member in implementing the remedial recommendations made by the Peer Assessment Committee are payable by the member and are not the responsibility of the Committee, the Board or the College.

(10) Where an assessor or a member of the Peer Assessment Committee learns, in the course of an assessment, that a member of the College may be guilty of a disciplinary matter, the assessment shall be terminated, the member shall be advised and the matter shall be referred to the College to be dealt with as a complaint.

(11) The assessor or a member of the Peer Assessment Committee shall not provide any information to the College, except the information necessary to identify the nature of the complaint.

(12) Nothing in this Section prevents any other person from providing evidence of a disciplinary matter relating to a member.

(13) Each year the Peer Assessment Committee shall prepare and publish a report on its activities for the preceding year.

65 (1) In this Section,

(a) "legal proceeding" means

(i) a proceeding in any court, including a proceeding for the imposition of punishment by fine, penalty or imprisonment to enforce an Act of the Legislature or a regulation made under that Act, or any civil proceeding, and

(ii) a disciplinary proceeding pursuant to this Act;

(b) "witness" means any member or officer or employee of the College, any assessor or former assessor and any other person who, in connection with, or in the course of, a legal proceeding is called upon to provide information, to answer, orally or in writing, a question or to produce a document, whether under oath or not.

(2) A witness in a legal proceeding, whether a party or not, is excused from

(a) providing any information obtained by the witness in the course of or in relation to an assessment; and

(b) producing any document made by the Peer Assessment Committee, an assessor appointed under this Act or any other document which was prepared pursuant to or in relation to an assessment.

(3) Subsection (2) does not apply to

(a) records maintained by hospitals as required by the Hospitals Act or regulations made pursuant to that Act; or

(b) medical records maintained by attending physicians pertaining to a client.

(4) Notwithstanding that a witness

(a) is or has been an assessor or a member of a subcommittee of;

(b) has participated in the activities of; or

(c) has prepared a document for or has provided information to,

the Peer Assessment Committee, the witness is not, subject to subsection (2), excused from answering any question or producing any document that the witness is otherwise bound to answer or produce.

(5) An assessor or a member of the Peer Assessment Committee shall not provide evidence against a member in a disciplinary matter with respect to information given by the member to the assessor or a member of the Peer Assessment Committee in the course of an assessment of the member unless the member has knowingly given false information during the assessment or the disciplinary matter.

(6) Nothing in subsection (5) prevents any other person from providing evidence against a member in a disciplinary matter with respect to the information given by the member in the course of the members assessment.

66 Sections 41 to 63 and 67 to 89 and all regulations pursuant to this Act that are applicable to members of the College apply with all necessary modifications to former members, unless otherwise expressly provided by this Act or the regulations.

EVIDENCE

67 A certificate purporting to be signed by the Registrar stating that any person named therein was or was not, on a specified day or during a specified period, registered and licensed, is prima facie evidence in any court of that fact without proof that the person signing it is the Registrar or of the Registrars signature.

68 The presence of the name of any person in a document purporting for any year to be an annual list published by the Registrar pursuant to Section 30 is prima facie evidence in any court of the fact that a person whose name so appears is or was registered and licensed at the time of publication of such annual list.

NOTICES

69 Service of any notice, order, resolution or other document pursuant to this Act or the regulations may be made

(a) upon a member by registered letter addressed to such person at the members address as set forth in the Register; and

(b) upon any other person by registered letter.

70 Where service is made by registered letter, service is deemed to be made on the third day after the notice, order, resolution or other document is mailed, and proof that the notice, order, resolution or other document was addressed and posted in accordance with Section 69 is proof of service.

71 Service of any document on the College may be made by service on the Registrar.

LIMITATIONS OF ACTIONS

72 Where a physiotherapist voluntarily renders first aid or emergency treatment without the expectation of monetary compensation to a person outside of a hospital or physiotherapist's office, or in any other place not having proper and necessary medical facilities, that physiotherapist is not liable for the death of such person, or damages alleged to have been sustained by such person by reason of an act or omission in the rendering of such first aid or emergency treatment, unless it is established that such injuries were, or such death was caused, by conduct on the part of the physiotherapist that, if committed by a person of ordinary experience, learning and skill, would constitute negligence.

73 (1) No action for damages lies against the Peer Assessment Committee, the College, the Board, the Registrar, an officer or employee of the Peer Assessment Committee or College or Board, an assessor, a member of a committee or subcommittee of the Peer Assessment Committee or the College or the Board, or a member of the Board or committee of the Board or a member of the College

(a) for any act or failure to act, or any proceeding initiated or taken, in good faith under this Act, or in carrying out their duties or obligations as an officer, employee or member under this Act; or

(b) for any decision, order or resolution made or enforced in good faith under this Act.

(2) No action lies against any person for the disclosure of any information or any document or anything therein pursuant to this Act unless such disclosure is made with malice.

(3) Without limiting the generality of subsection (2), no action for damages lies against a member or other person for disclosing any books, records, papers and other documents in their possession or control when done pursuant to this Act, including clause 46(9)(d).

INCORPORATION

74 Subject to this Act and the regulations, a professional corporation may engage in the practice of physiotherapy and physiotherapists may be employed by a professional corporation for the purpose of engaging in the practice of physiotherapy.

75 (1) A majority of the issued shares of a professional corporation shall be legally and beneficially owned by one or more physiotherapists.

(2) A majority of the issued shares of a professional corporation shall be legally and beneficially owned by one or more physiotherapists.

(3) Subject to subsection (1) and (2), the spouse or child of a physiotherapist or approved health professional or any other person may own, beneficially or legally, shares of a professional corporation.

(4) Notwithstanding subsection (2), a person resident in Canada may hold legal title to issued shares of a professional corporation solely as trustee for the exclusive benefit of an physiotherapist, or the spouse or child of a physiotherapist, or a group of such individuals so long as no one other than a physiotherapist, or the spouse or child of a physiotherapist, acts as such a trustee without the written consent of the Registrar.

76 (1) A majority of the directors of a professional corporation shall be physiotherapists.

(2) The president of a professional corporation shall be a physiotherapist.

77 A professional corporation shall not engage in the practice of physiotherapy unless the professional corporation is issued a permit under this Act and is in compliance with this Act and the regulations.

78 (1) Notwithstanding anything contained in this Act, a professional corporation to which a permit is issued pursuant to this Section may practise physiotherapy in its own name.

(2) Notwithstanding subsection (1), no professional corporation shall be registered as a physiotherapist under this Act.

(3) The Registrar shall issue a permit to any professional corporation that fulfills the following conditions:

(a) files all required applications in the form prescribed by the regulations;

(b) pays all fees prescribed by the regulations;

(c) satisfies the Registrar that it is a professional corporation limited by shares that is in good standing with the Registrar of Joint Stock Companies under the Companies Act and the Corporations Registration Act and that it is a private company as defined by the Securities Act;

(d) satisfies the Registrar that the name of the professional corporation is not objectionable and is in accordance with the regulations;

(e) satisfies the Registrar that the requirements of Sections 75 and 76 have been met;

(f) satisfies the Registrar that the professional corporation holds such liability insurance as may be prescribed by the regulations;

(g) satisfies the Registrar that the persons who will carry on the practice of physiotherapy for or on behalf of the professional corporation are physiotherapists; and

(i) satisfies the Registrar that the professional corporation is in compliance with this Act and the regulations.

(4) A permit issued pursuant to subsection (3), or any renewal of a permit pursuant to subsection (5), expires on December 31st of the year for which it was issued or renewed.

(5) The Registrar may renew a permit upon such application and payment of such fee as may be required by the regulations where the Registrar determines that the requirements of subsection (3) are satisfied by the professional corporation.

(6) A permit issued pursuant to subsection (3), or renewed pursuant to subsection (5), may be suspended or revoked at any time by the Registrar if a professional corporation fails to satisfy any of the requirements prescribed in subsection (3).

(7) The Board may, in its discretion, review a decision of the Registrar to suspend or revoke a permit pursuant to subsection (6).

(8) For the purpose of this Act, the practice of physiotherapy shall not be carried on by or be deemed to be carried on by clerks, secretaries and other persons employed by the professional corporation to perform services that are not usually and ordinarily considered by law, custom and practice to be services that may be performed only by a physiotherapist.

79 (1) Where a professional corporation practices physiotherapy only through the services of one physiotherapist and that physiotherapist dies, retires, becomes incompetent or is no longer licensed under this Act, or is suspended under this Act, the permit of such professional corporation is deemed to be revoked and such professional corporation shall cease to practise physiotherapy.

(2) Where a professional corporation practises physiotherapy through the services of more than one physiotherapist and such professional corporation ceases to fulfil any requirement prescribed in subsection (3) by reason of

(a) the death of a physiotherapist;

(b) the incompetency of a physiotherapist;

(c) the revocation of the licence of a physiotherapist pursuant to this Act;

(d) the suspension of the licence of a physiotherapist pursuant to this Act; or

(e) the retirement from practice by a physiotherapist,

such professional corporation shall forthwith notify the Registrar and shall fulfil the requirements in question within one hundred and twenty days from the date of death, incompetency, revocation, retirement or other removal or the suspension, as the case may be, of the physiotherapist, failing which the permit is deemed to be revoked and such professional corporation shall cease to practise physiotherapy effective upon the expiration of the one hundred and twenty day period.

(3) Where the permit of a professional corporation is deemed to be revoked under this Section and thereafter the professional corporation is able to demonstrate that it is in compliance with subsection 78(3), the professional corporation may apply to the Registrar to have its permit re-instated and the Registrar may, in the Registrar's discretion, re-instate the permit subject to such conditions as the Registrar may direct.

80 Where the shares of a professional corporation engaged in the practice of physiotherapy are transferred or where there is a change in the shareholders, directors or officers of the professional corporation, or any change in the location where the professional corporation carries on business, the professional corporation shall, within fifteen calendar days, notify the Registrar of such change.

81 The relationship of a physiotherapist to a professional corporation whether as a shareholder, director, officer or employee, does not affect, modify or diminish the application of this Act and the regulations to the physiotherapist.

82 (1) All persons who carry on the practice of physiotherapy by, through or on behalf of a professional corporation are liable in respect of acts or omissions done or omitted to be done by them in the course of the practice of physiotherapy to the same extent and in the same manner as if such practice were carried on by them as an individual or a partnership, as the case may be, carrying on the practice of physiotherapy.

(2) No owner of voting shares of a professional corporation shall pledge, hypothecate, enter into a voting trust, proxy or any other type of agreement vesting in any other person who is not a physiotherapist the authority to exercise the voting rights attached to any or all of the owners shares.

83 (1) Nothing contained in this Act affects, modifies or limits any law applicable to the confidential or ethical relationships between a physiotherapist and a client.

(2) The relationship between a professional corporation and a client of the professional corporation is subject to all applicable laws relating to the confidential and ethical relationships between a physiotherapist and a client.

(3) All rights and obligations pertaining to communications made to or information received by an physiotherapist apply to the shareholders, directors, officers and employees of a professional corporation.

84 All shareholders, directors, officers and employees of a professional corporation are compellable witnesses in any proceedings under this Act.

85 A certificate purporting to be signed by the Registrar stating that a named professional corporation was or was not, on a specified day or during a specified period, a professional corporation entitled to practise physiotherapy according to the records of the Registrar, shall be admitted in evidence as prima facie proof of the facts stated therein without proof of the Registrar's appointment or signature.

86 Where a professional corporation commits an offence contrary to this Act or the regulations, every person who, at the time of the commission of the offence, was a director or officer of the corporation is guilty of the same offence and subject to the same penalties unless the act or omission constituting the offence took place without the persons knowledge or consent or the person exercised all due diligence to prevent the commission of the offence.

87 (1) Every person who contravenes Sections 74 to 86 or the associated regulations is guilty of an offence and liable, on summary conviction, for a first offence to a fine not exceeding five hundred dollars and for a second or any subsequent offence to a fine not exceeding one thousand dollars.

(2) Where a professional corporation is convicted of an offence contrary to Sections 74 to 86 or the associated regulations, the permit of the corporation is suspended in default of paying any fine ordered to be paid until such time as the fine is paid.

(3) Where a professional corporation is convicted of a second or subsequent offence, the permit of the corporation may be revoked.

GENERAL

88 (1) Subject to any publication bans, the College shall publish a hearing committees decision or summary of the decision in its annual report and may publish the decision or summary in any other publication.

(2) Where the registration or licence, or specialists licence, or both, of a member has been revoked or suspended or where conditions, limitations or restrictions are imposed on the licence or specialists licence of a member, the College shall place a notice in such publications as it deems necessary in order to inform the public.

89 All regulations made pursuant to this Act are regulations within the meaning of the Regulations Act.

90 (1) For greater certainty,

(a) a complaint made pursuant to the former Act shall continue to be proceeded with in accordance with this Act as nearly as circumstances permit; and

(b) in respect of that complaint, a discipline committee appointed pursuant to the former Act and its regulations and by-laws is deemed to be an investigation committee appointed pursuant to this Act.

(2) Nothing in subsection (1) precludes a complaint made pursuant to the former Act being investigated by an investigation committee appointed pursuant to this Act and, in such case, a discipline committee appointed pursuant to the former Act ceases to have any jurisdiction respecting that complaint.

91 (1) Upon the coming into force of this Act, any matter pending before a discipline committee appointed pursuant to the former Act shall, where not set down for a hearing to commence within sixty days of the coming into force of this Act, be transferred to a hearing committee appointed pursuant to this Act for hearing and determination, but otherwise shall be heard and determined by a discipline committee appointed pursuant to the former Act.

(2) Notwithstanding subsection (1), the parties may agree that a matter pending be transferred to a hearing committee appointed pursuant to this Act.

(3) A discipline committee appointed pursuant to the former Act shall be continued until all matters pending before it at the coming into force of this Act and not transferred to a hearing committee appointed pursuant to this Act have been finally decided.

92 The former Act is repealed.

93 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.


This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 1998 Crown in right of Nova Scotia. Created December 11, 1998. Send comments to legc.office@gov.ns.ca.