BC Association of Clinical Counsellors

Legal Commentary *

Are Counsellors Allowed to Make a Psychological Diagnosis?

A Consideration of the Laws of British Columbia that Impact a Clinical Counsellor’s Ability to Undertake or

Provide a Diagnosis of a Client’s Psychological Condition

Prepared by George K. Bryce, BCACC Legal Counsel

February 15, 2013 Introduction ......................................................................................................................... 1

Legal Questions .................................................................................................................. 2

Preliminary Issues ............................................................................................................... 2

1) How is “assessment” different from “diagnosis”? ......................................................3

2) What is a restricted activity under the HPA? ..............................................................4

3) How does the HPA prevent a non-registrant from performing a prescribed restricted activity? ............................................................................................................8

4) What legal actions can a college take against a non-registrant who has breached a restricted activity prohibition? .....................................................................11

Answers to the Legal Questions ....................................................................................... 15

1) Is psychological diagnosis an activity that is regulated under the HPA? ..................15

2) If it is regulated, does that have the legal effect of prohibiting clinical counsellors from making a psychological diagnosis? ....................................................18

Conclusions ....................................................................................................................... 22

Commentary ...................................................................................................................... 23

* This commentary is intended to help clinical counsellors gain a better understanding of legal issues that

are relevant to their practice. It is not meant to be a substitute for legal advice. If a counsellor has a particular concern about an issue that he or she is facing in practice, that counsellor should seek independent legal advice from a lawyer. Neither Mr. Bryce nor the BCACC can provide individual counsellors with legal advice.

1

INTRODUCTION

Clinical counsellors (members of the BC Association of Clinical Counsellors)

routinely undertake assessments of their clients that include identifying and

reporting on the client’s presenting symptoms, then recommending to the client a

course of treatment. For example, a counsellor may identify that a client suffers

from acute anxiety with panic attacks, and may then recommend cognitive therapy

and exposure protocols. This process is often viewed as different from the process

of diagnosing a client with an anxiety disorder, applying tools such as the Diagnostic

and Statistical Manual of Mental Disorders (DSM).1

British Columbia courts, administrative tribunals and third party insurers

may request counsellors provide a psychological diagnosis of someone’s condition,

and many counsellors have the necessary competencies to provide such an opinion.

However, some psychologists have taken the position that, as a matter of law,

counsellors are not permitted to do this. They believe that making a psychological

diagnosis is a function granted exclusively to their profession.

This Legal Commentary will explore whether the act of making or providing

a diagnosis, more specifically a “psychological diagnosis,” is currently regulated in

British Columbia and, in turn, whether counsellors are thus legally prohibited from

providing this service.

1 American Psychiatric Association, (2000) Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision). Washington, DC: Author.

2

LEGAL QUESTIONS

The legal issues that will be considered in this Commentary can be framed by

asking two questions:

Is psychological diagnosis an activity that is regulated under the Health

Professions Act2 (HPA)?

If psychological diagnosis is regulated under the HPA, does that then have the

legal effect of preventing clinical counsellors from providing this service?

PRELIMINARY ISSUES

Before addressing the legal issues, it is useful to address certain preliminary

matters, as this will provide a foundation for a subsequent discussion on the

primary issues:

1. Is an “assessment” different from a “diagnosis”? If so, in what way are they

different?

2. What is a restricted activity under the HPA? And how are restricted activities

prescribed under the HPA?

3. How does the HPA prevent a non-registrant from performing a prescribed

restricted activity?

4. What legal actions can a college take against a non-registrant who has

breached a restricted activity prohibition?

With answers to these preliminary questions, we can return to a

consideration of the two primary legal questions, as set out above.

2 R.S.B.C. 1996, c. 183.

3

1) How is “assessment” different from “diagnosis”?

While the HPA is silent on the possible difference between an assessment

and a diagnosis, the question was a burning issue about 15 years ago when BC’s

then Health Professions Council (HPC) was tasked with implementing a reserved

acts model, based on Ontario’s controlled acts approach to professional regulation.

In its 1998 Shared Scope of Practice Model Working Paper,3 the HPC

summarized the difference between assessment and diagnosis in these terms

(emphasis added; quoted in part):

1. Making a diagnosis identifying a disease, disorder or condition as the cause of signs or symptoms of the individual. The Council believes it important to distinguish between diagnosis and assessment. Essentially, diagnosis is the identification of the cause of signs or symptoms. Assessment is a process of observation and evaluation of the physical status or progress of a patient, which may involve observation of symptoms, but does not include naming or identifying a disease, disorder, or condition as the cause of these symptoms. In the Council's view, all health care practitioners assess a client's progress and response to services rendered. … In the Council's view, it is the identification of a disease, disorder or condition as the cause of signs or symptoms of the individual which should be a reserved act, and the process of assessment should continue to be in the public domain. Both regulated and unregulated practitioners would be free to perform assessments during the course of providing health care services, subject always to the proposed general risk of harm clause.…

In summary, the HPC concluded that, while an assessment of a client is often

the first step a health professional may undertake, that assessment does not become

a diagnosis until the practitioner names or identifies a particular disease, disorder

or condition as being the root cause of the client’s signs or symptoms. Therefore, it

appears there is a key difference between an assessment and a diagnosis.

The primary difference becomes apparent in counselling and clinical

3 Health Professions Council, Shared Scope of Practice Model Working Paper (January 15, 1998)

4

psychology when a mental health practitioner communicates to a client or others

that the client is suffering from a particular mental disease, disorder or condition.

The practictioner may use a recognized reference document, such as the DSM, to

describe and name that mental health problem, but it is not the use of the DSM that

is determinative. Rather, from a legal point of view, the critical step is taken when

the practitioner names the client’s disease, disorder or condition as being the cause

of that client’s psychological signs or symptoms. At that point, the assessment has

become a diagnosis.4

2) What is a restricted activity under the HPA?

A restricted activity is defined in section 1 of the HPA by referencing

another section of the Act: “’restricted activity’ means an activity prescribed

under section 55(2)(g).”

Section 55 of the Act provides the mechanism to prescribe activities as being

restricted (in part, emphasis added):

Regulations of the minister 55(1) The minister may make regulations referred to in section 41 of the Interpretation Act. (2) Without limiting subsection (1), the minister may make regulations as follows:

… (g) prescribing activities for the purposes of the definition of "restricted activity" in section 1; …

These linked provisions indicate that the Minister of Health must prescribe

within a regulation one or more activities that would then be known as “restricted

activities” throughout the HPA.

The restricted activities the Minister may prescribe take one of two different

forms, what can be described as: (a) general and (b) profession-specific.

4 This terminology appears to be consistent with judicial consideration of causation in civil cases. For example, in LeBlanc v. Gill (1999 CarswellOnt 3712, OSCJ), the court framed the question being addressed in a filed expert report prepared by a physician in these terms: “What is her diagnosis and is this related to or caused by the iron infusion?”

5

(a) General restricted activities

To date, the Minister has not made final regulations under section 55(2)(g) of

the HPA, so there are no prescribed general restricted activities that can be

referenced.

While the absence of a set of prescribed restricted activities would normally

end the analysis, and lead to a negative response to the first legal question asked

above, it is useful to consider what is likely to happen legislatively in the future. This

is because, eventually, the Ministry of Health intends to move forward with creating

general restricted activities by regulation under the authority of section 55(2)(g) of

the HPA. This intention was made clear over three years ago.

In March 2010, the Ministry posted a list of possible restricted activities in

the form of a proposed amendment to the Health Professions General Regulation5

(the General Regulation). This amendment would add a series of Restricted Activities

– General under what would become a new section 9 of the General Regulation.6 If

the Minister eventually approves such an amendment pursuant to section 55(2)(g)

of the HPA, it would then generate a list of prescribed general restricted activities.

A general diagnosis-restricted activity was described in the proposed new

section 9 of the General Regulation in these terms: “to make a diagnosis identifying,

as the cause of signs or symptoms of an individual, a disease, disorder or condition.”

This description of a diagnosis is essentially the same as was first recommended by

the HPC back in 1998.

As is reflected in the proposed title to the new section 9, the various activities

to be set out in this section can be described as “general” restricted activities.

Eventually these general restricted activities would be enforced under Part 4.1 of the

HPA against any person who is not a registrant of a college that has been granted

5 B.C. Reg. 275/2008. 6 BC Ministry of Health, Health Professions General Regulation: Restricted Activities, Consultation Draft (March 19, 2010).

6

one or more of such activities. I emphasize “eventually” because Part 4.1 of the HPA

that would create this enforcement mechanism is also not yet in force.

I will have more to say about the importance of Part 4.1 of the HPA later in

this Commentary. For now, I will turn to consider how a college registrant can be

granted one or more of the general restricted activities or some variation on such

activities. Such grants can be described as “profession-specific” restricted activities.

(b) Profession-specific restricted activities

Section 12 of the HPA allows the Minister to prescribe various matters within

a designated profession’s regulation (in part, emphasis added):

Designation of a health profession 12(1) The Lieutenant Governor in Council may, by regulation, designate a health profession for the purposes of this Act. (2) In respect of a designated health profession, the minister may, by regulation, prescribe the following:

… (e) services that may be provided only by registrants; … (g.1) restricted activities that may be performed by registrants in the course of providing services referred to in paragraphs (c) to (g); (g.2) limits or conditions on the performance of restricted activities referred to in paragraph (g.1); …

Sections 12(2)(e), (g.1) and (g.2) of the HPA allow the Minister to grant one

or more restricted activities to a specific health profession. This grant is set out

within a profession’s “designation regulation,” and a profession’s restricted

activities are usually thus listed within the regulation under the heading Restricted

Activities.

As these grants are either versions of a general restricted activity or a

variation or abbreviation of a general restricted activity, and because they are

granted under section 12(2) of the HPA rather than section 55(2)(g), I will refer to

them as the “profession-specific” restricted activities. This distinction is more than

simple semantics.

7

Not every health profession designated under the HPA has been or will be

granted a profession-specific restricted activity under section 12(2) of the Act.7

For example, no provision currently exists within the Psychologists

Regulation8 granting psychologists a restricted activity of any type. This health

profession has been granted only occupational title protection for two titles that

refer to College registrants: Psychologist and Psychological Associate. Thus, BC

psychologists have no legislative monopoly over the practice of psychology

generally or narrowly in relation to making a psychological diagnosis.9

In contrast, a number of other health professions have been granted one or

more profession-specific restricted activities under section 12(1) of the HPA. Some

of these activities are subsets of or variations on the unproclaimed list of proposed

general restricted activities, as noted above. I will consider the examples of the

diagnosis-restricted activities when answering the first legal question later in this

Commentary.

Discussion

Eventually, the Minister is likely to approve the addition of proposed section

9 to the General Regulation, and, by that step, will then prescribe a number of

general restricted activities. Those professions that currently have not been granted

7 While the Seaton Commission recommended in 1991 that BC move to a restricted activities model of regulating the health professions, it has taken decades for the Ministry of Health to consolidate profession-specific statutes, and to devise a list of general restricted activities that were manageable under the HPA. More importantly, the Ministry has yet to properly frame the profession-specific restricted activities for each of BC’s two-dozen or more health professions. For more information on the professions and whether or not each one should be granted any form of a restricted activity, see the HPC’s scope of practice review, part of its 2001 report titled Safe Choices: A New Model For Regulating Health Professions in British Columbia. 8 B.C. Reg. 289/2008. 9 This conclusion was also reached in the case of College of Psychologists of BC v. Utendale, 2007 BCSC

824, [2008] B.C.W.L.D. 831, 2007 CarswellBC 1336, 2007 BCSC 824 (CanLII) (BCSC). In this case, the College of Psychologists of BC sought a seriers of injunctions against Dr. Utendale who was not a registered psychogists. On the question as to whether Dr. Utendale had breached the legislation by practicing psychology, BCSC Justice Stephen Kelleher ruled that section 4 of the Psychologists Regulation simply provided that registrants of the College may practice psychology. The Court also found that the profession had not been granted a “restricted activity” concerning psychology or any aspect of psychological services

8

any type of profession-specific restricted activity are then likely to be granted one or

more, or some variation on those general activities. It is also possible that some

professions may not be granted any restricted activities.10

In anticipation that the Minister will eventually prescribe a set of restricted

activities through a new section 9 of the General Regulation, the next step is to

consider how such restricted activities would then be enforced under the HPA. This

leads us to consider the next preliminary issue:

3) How does the HPA prevent a non-registrant from performing a prescribed

restricted activity?

The HPA prevents persons who are not authorized registrants of a college

from performing prescribed restricted activities, but there are two different forms

of this statutory prohibition:

(a) a prohibition against practising a designated health profession, as set out in

the currently in-force section 13 of the Act; and

(b) a prohibition against performing a restricted activity, as set out in what will

eventually become section 50.2 of the Act.

These two prohibitions are enforced differently under the HPA, and

understanding that difference is critical to then answering the final legal question

later in this Commentary. For now, it is necessary to consider how these two

prohibitions are framed within the Act:

(a) Section 13 service prohibition

Currently, section 13 of the HPA states that a non-registrant must not

perform a prescribed service or restricted activity, but there are exceptions to this

prohibition set out in section 14. These two provisions state (emphasis added, only

relevant provisions quoted):

10 For an indication of the profession-specific restricted activities that are likely to be granted, as well as information on those professions that the Health Professions Council did not recommend be granted any restricted activity, see the HPC’s 2001 report, Safe Choices.

9

Prohibitions regarding practice of designated health profession 13(1) If a regulation under section 12(2)(d) limits the services that may be provided in the course of practice of a designated health profession, a registrant must limit his or her practice of that designated health profession in accordance with the regulation. (2) If a regulation under section 12(2)(e) prescribes a service that may only be provided by a registrant of a particular college,

(a) a person other than a registrant of the college must not provide the service, and (b) a person must not recover any fee or remuneration in any court in respect of the provision of the service unless, at the time the service was provided, the person was a registrant of the college or a corporation entitled to provide the services of a registrant of the college.

… Exceptions to prohibitions 14. Despite section 13, nothing in this Act, the regulations or the bylaws prohibits a person from

(a) practising a profession, discipline or other occupation in accordance with this or another Act, or (b) providing or giving first aid or temporary assistance to another person in case of emergency if that aid or assistance is given without gain or reward or hope of gain or reward.

In summary, if a designation regulation uses section 12(2)(e) of the HPA to

prescribe a service that only registrants of a college may provide (i.e., a profession-

specific restricted activity), then section 13(2)(a) of the Act goes on to state that no

one other than a registrant of a college granted that act may provide or perform that

prescribed service. How the profession’s designation regulation prescribes the

profession-specific restricted activities is critical. (I will discuss the importance of

the language used to prescribe a profession-specific restricted activity later in this

Commentary.)

(b) Pending section 50.2 general prohibition

Part 4.1 of the HPA, when it is eventually proclaimed into force, will create a

new set of prohibitions that will focus on enforcing the general restricted activities.

(Again, these will be listed in a new section 9 of the General Regulation.) When fully

enacted, section 50.2 will create the prohibition, and section 50.4 will in turn

10

identify some exceptions11 (emphasis added):12

PART 4.1 – RESTRICTED ACTIVITIES

Prohibition and limitation – performance of restricted activities 50.2(1) A person must not perform a restricted activity in the course of providing a service described in, or doing work described by, the definition of “health profession” in section 1, unless

(a) the person is a registrant of a college whose registrants are authorized by a regulation under section 12 to perform the restricted activity in the course of providing services, (b) the person is delegated to perform the restricted activity, or authorized to perform the restricted activity under supervision, by a registrant described in paragraph (a), and the delegation or supervision is consistent with section 50.3 and any regulations made under section 50.3, (c) the person is exempted, or is a member of a class of persons exempted, by the regulations of the minister from the prohibition against performing the restricted activity, or (d) the restricted activity is performed in the course of an activity exempted by the regulations of the minister.

(2) Subsection (1) applies to any person, including a person who is not a registrant of any college.

…

Exceptions 50.4(1) A person’s performance of a restricted activity is not a contravention of section 50.2 if the person performs the restricted activity while

(a) rendering first aid or temporary assistance in an emergency, (b) fulfilling the conditions or requirements for registration as a member of a college whose registrants are authorized by a regulation under section 12 to perform the restricted activity, and the restricted activity is performed under the supervision of a registrant of a college specified for the purposes of this paragraph by the board for the college for which the person is fulfilling the conditions or requirements for registration, or (c) subject to the bylaws, caring for themselves or for a member of their family.

(1.1) The minister may, by regulation, specify that the exception described in subsection (1)(b) does not apply in respect of a designated health profession. (2) Subsection (1) does not apply to a person who treats or advises an individual respecting the health of the individual, or of a dependent of the

11 Between these two provisions is section 50.3, which speaks to the rules that will govern when a registrant may delegate the performance of a restricted activity. As this provision is not relevant to this opinion, it is not included here. 12 Unofficial Ministry of Health Services Consolidation of the HPA (amendment enacted but not in force as

at July 22, 2010).

11

individual, if a reasonable person could foresee that a serious risk to life or health could result from

(a) carrying out the treatment or advice, or (b) committing errors or omissions in attempting to carry out the treatment or advice.

Discussion

Because Part 4.1 of the HPA is not yet in force, the colleges that have been

created under the Act must rely on the section 13(2) general service prohibition to

stop non-registrants from performing any of the profession-specific restricted

activities that may have been granted to their registrants. But when Part 4.1

eventually comes into force, the colleges would then be able use the section 50.2

prohibition. However, the focus of this second prohibition will be on the general

restricted activities that will be listed in the restricted activities section 9 of the

amended General Regulation, as described above.

For reasons that will be explained next, once the restricted activities model is

fully implemented under the new Part 4.1, along with section 9 of the General

Regulation, the various colleges will then have clearer and more substantial legal

authority to deal with apparent breaches of their registrants’ profession-specific

restricted activities.

Until these legislative changes are fully implemented, however, a college

must do what it can with the more limited enforcement options as set out in

sections 51 and 52 of the HPA.

I will now consider the final preliminary issue, which considers a college’s

current ability to take one or more legal actions to enforce a restricted activity.

4) What legal actions can a college take against a non-registrant who has

breached a restricted activity prohibition?

If a college identifies that a non-registrant has breached section 13 (or later

Part 4.1) of the HPA by performing a profession-specific (or later a general)

12

restricted activity, that college can take one of two different legal paths to deal with

such a breach:

(a) petition the Provincial Crown to prosecute the non-registrant for the

alleged offence;

(b) apply to the Courts for an injunction to stop the non-registrant from

breaching the prohibition again.

These are two very different enforcement options.

(a) Prosecution of an offence (section 51)

Section 51 of the HPA declares that a contravention of one of a specific set of

prohibitions in the Act is an offence that can then be prosecuted in court (emphasis

added, only relevant provisions quoted):

Offences 51(1) A person who contravenes section 12.1(1), (2) or (3), 13(1), (2) or (3), 20(5), 31(1) or (2), 50.2, 52.1(1) or 53(1) or (2) commits an offence.

The Provincial Crown handles the prosecutions of offences under the Offence

Act that have been created under section 51 of the HPA. A college would present its

evidence to the Crown and request that the Crown then proceed to prosecute the

identified non-registrant for the alleged breach.

This approach has the obvious benefit of relieving an HPA college of the legal

and other costs that flow from a Crown prosecution. But it also means that the

college no longer controls the process, at least so long as the Crown agrees to

proceed with a prosecution under section 51 of the Act.

Whether or not the Crown would accept a request from the College to

prosecute someone or some company that was breaching a specific prohibition is an

13

important question and one that is beyond the scope of this Commentary. 13 In

general terms, however, the Crown is unlikely to accept such a prosecution request

unless the College has first tried but failed to obtain compliance through an

injunction it obtained against the offending non-registrant.14

(b) Seeking an injunction (section 52)

A college could employ section 52 of the Act to apply for a court injunction

against an offending non-registrant (emphasis added):15

Injunction to restrain contravention 52(1) Any person may apply to the Supreme Court for an interim or permanent injunction to restrain a person from contravening any provision of this Act, the regulations or the bylaws. (2) A contravention may be restrained under subsection (1) whether or not a penalty or other remedy has been provided under this Act.

If such an application were successful, the court would then order the non-

registrant to stop performing the restricted activity. A breach of such an injunction

order could have further penalties including a proceeding for contempt of court or

prosecution under section 51, as described previously.

13 This question would involve a consideration of the BC Crown’s “Charge Assessment – Social Regulatory Offences” policy, as set out in policy CHA 1.2, in the Crown Counsel Policy Manual, produced by the Criminal Justice Branch, Ministry of Attorney General of BC. 14 The Crown policy CHA 1.2 opens with this caution: “Restraint should be exercised in proceeding with charges of a social regulatory nature. Generally speaking, prosecutions should be initiated only where alternate methods to enforce compliance have been tried and have failed, where the offender has demonstrated a wilful or repeated non-compliance with the social regulatory statute or where the public interest otherwise requires prosecution in order to protect the integrity of the regulatory scheme.” 15 A college could seek an injunction instead of petitioning the Crown to prosecute under section 51, or it may be able to seek an injunction (in a timely fashion) if the Crown refuses to prosecute.

14

Discussion

Seeking an injunction gives a college more options than requesting a Crown

prosecution, because the scope of an injunction under section 52 is broader than the

scope of prosecutions that can be pursued under section 51. Specifically, section 52

permits a college to seek an injunction for a breach of any provision of the Act.

In contrast, section 51 is focused on breaches of certain specific sections of

the Act. For example, Crown prosecutions are available for unauthorized use of a

reserved occupational title (section 12.1), unauthorized provison of a designated

profession’s prescribed service (section 13(2)), applying for registration without

merit (section 20(5)), and obstructing an inspector in the lawful performance of

duties or exercise of powers (section 31).

In addition, and when these provisions eventaully come into force, section 51

of the HPA could be used to prosecute non-registrants for the unauthorized use of a

profession-specific restricted activity (section 50.2), or the unauthorized use of a

prescribed term in an occupational title (section 52.1)

A disadvantage of the injunction option is that the college must bear all the

administrative and legal costs of pursuing such an application. And, if the college is

not successful, it might then have to pay the court-awarded costs of the respondent

party. For these reasons, a college should be very confident of success before it

applies for an injunction under section 52.

Invoking section 52 is the most common approach taken by BC’s health

profession colleges to date, as reflected in reported court decisions. In fact, I can find

no reported BC case where the Crown has prosecuted a non-registrant for an

offense under section 51 of the HPA.

15

ANSWERS TO THE LEGAL QUESTIONS

With the preceding foundation, the two legal issues set out in the

Introduction can now be addressed:

1) Is psychological diagnosis an activity that is regulated under the HPA?

To answer this question, it is useful to start with a consideration of the

specific forms of diagnosis that have been granted thus far to various health

professions under the HPA.

Current forms of profession-specific diagnosis

While no general restricted activities have yet been prescribed under section

55(2)(g) of the HPA, a number of health professions have been granted one or more

profession-specific restricted activities. The following profession-specific forms of

the diagnosis-restricted activities have been granted:

Audiologists: make a diagnosis identifying, as the anatomical cause of

behavioural, psychological or language-related signs or symptoms of an

individual, an auditory or related communication disorder;16

Chiropractors: make a diagnosis identifying, as the cause of signs or

symptoms of an individual, a disease, disorder or condition of the spine or

other joints of the body and the associated tissue, and the nervous system;17

Dentists: make a diagnosis identifying, as the cause of signs or symptoms of

an individual, a disease, disorder or condition of the orofacial complex and

associated anatomical structures;18

Medical doctors: make a diagnosis identifying, as the cause of signs or

symptoms of an individual, a disease, disorder or condition;19

16 Speech and Hearing Health Professions Regulation, BC Reg. 413/2008, section 5(1)(a). 17 Chiropractors Regulation, BC Reg. 414/2008, section 4(1)(a). 18 Dentists Regulation, BC Reg. 415/2008, section 4(1)(a). 19 Implied from the wording of Medical Practitioners Regulation, BC Reg. 416/2008, section 4(1).

16

Midwives: make a midwifery diagnosis20 identifying a condition as the cause

of signs or symptoms of an individual;21

Naturopathic physicians: use naturopathic techniques to make a diagnosis

identifying, as the cause of signs or symptoms of an individual, a disease,

disorder or condition;22

Optometrists: make a diagnosis identifying, as the cause of signs or symptoms

of an individual, (i) a disorder of refraction, (ii) a sensory or ocular motor

disorder, or (iii) a disease or disorder of an eye or an anatomical structure

directly related to the vision system;23

Podiatrists: make a diagnosis identifying, as the cause of signs or symptoms

of the individual, a disease, disorder or condition of the foot or lower leg;24

Registered nurses / Nurse practitioners: make a nursing diagnosis25

identifying a condition as the cause of the signs or symptoms of an

individual;26

Speech-language pathologists: make a diagnosis identifying, as the anatomical

cause of behavioural, psychological or language-related signs or symptoms of

an individual, a speech, language or related communication disorder; 27

Traditional Chinese medicine practitioners, Acupuncturist or Herbalist: make a

traditional Chinese medicine28 diagnosis identifying a disease, disorder or

condition as the cause of signs or symptoms.29

20 Where in section 1: “midwifery diagnosis means a clinical judgment of a woman's mental or physical condition, or that of her newborn, to determine whether (a) the condition can be ameliorated or resolved by services that the registrant is authorized to provide, or (b) consultation with, or transfer of responsibility for care to, another health professional is necessary or appropriate.” 21 Midwives Regulation, BC Reg. 281/2008, section 5(1)(a). 22 Naturopathic Physicians Regulation, BC Reg. 282/2008, section 5(1)(a). 23 Optometrists Regulation, BC Reg. 33/2009, section 5(1)(a). 24 Podiatrists Regulation, BC Reg. 214/2010, section 5(1)(a). 25 Where in section 1: “"nursing diagnosis means a clinical judgment of an individual's mental or physical condition to determine whether the condition can be ameliorated or resolved by appropriate interventions of the registrant to achieve outcomes for which the registrant is accountable.” 26 Nurses (Registered) and Nurse Practitioners Regulation, BC Reg. 284/2008, sections 6(1)(a) and 9(1)(a). 27 Speech and Hearing Health Professions Regulation, BC Reg. 413/2008, section 5(3)(a).

17

As should be clear from reviewing this list, no profession, including

psychology, has been granted a psychological diagnosis-restricted activity or any

profession-specific activity that is linked to the DSM. Therefore, it is clear that there

is currently no enforceable general restricted activity, nor is there a profession-

specific restricted activity, that has the effect of regulating psychogical diagnosis

under the HPA.

Not only is no such restricted activity currently granted to any BC health

profession, but also, given the decision in the Utendale case (i.e., that the practice of

psychology is not under the exclusive control of the College of Psychologists), it is

highly unlikely that the narrower aspect of psychological practice, being the making

of a psychological diagnosis, would be found to be exclusive to psychologists. Thus,

the answer to this first legal question is: No.

Unfortunately, this must be a qualified “No” because there is a possibility

that, at some future date, psychologists will be granted a form of psychological

diagnosis as a profession-specific restricted activity.

A future form of psychological diagnosis?

In its 1999 Psychologists Scope of Practice Preliminary Report, the HPC

recommended that registrants of the College of Psychologists be granted a form of a

diagnosis-restricted act it described as: “Making a diagnosis, identifying a mental or

psychological disorder, dysfunction or condition as the cause of signs or symptoms

28 Where under section 1: “"traditional Chinese medicine" means the promotion, maintenance and

restoration of health and prevention of a disorder, imbalance or disease based on traditional Chinese medicine theory by utilization of the primary therapies of (a) Chinese acupuncture (Zhen), moxibustion (Jiu) and suction cup (Ba Guan), (b) Chinese manipulative therapy (Tui Na), (c) Chinese energy control therapy (Qi Gong), (d) Chinese rehabilitation exercises such as Chinese shadow boxing (Tai Ji Quan), and (e) prescribing, compounding or dispensing Chinese herbal formulae (Zhong Yao Chu Fang) and Chinese food cure recipes (Shi Liao).” 29 Traditional Chinese Medicine Practitioners and Acupuncturists Reglation, BC Reg. 290/2008, section 5(a). Further, section 6(5) states: “An acupuncturist or herbalist must not use traditional Chinese medicine diagnostic techniques except as authorized in the bylaws.”

18

of the individual.”30 To date, however, the Ministry has not moved forward to

implement this recommendation. Therefore, psychologists do not yet have a legal

foundation under the HPA to claim that only their profession can provide a

psychological diagnsosis.31

2) If it is regulated, does that have the legal effect of prohibiting clinical

counsellors from making a psychological diagnosis?

While a negative answer to the first legal question renders the second

question moot, it is nonetheless useful to consider another issue that looks at how

psychological diagnosis could be worded if it did become a profession-specific

restricted activity, and, in particular, if psychological diagnosis is eventually granted

to psychologists under their current designation regulation.

While Part 4.1 of the HPA is not yet in force, this delay has not prevented a

few colleges from applying for injunctions under section 52 to try to stop non-

registrants from performing certain restricted activities. A review of two cases

illustrates that the success or failure of a section 52 injunction application turns on

the way that the applicable profession-specific restricted activity has been worded:

in particular, whether or not the regulatory provision itself sets out a clear

prohibition that can then be enforced by the courts applying the HPA.

In 2009, in College of Opticians of British Columbia v. Coastal Contacts Inc.,32

the BC Court of Appeal considered an appeal initiated by the College from an earlier

decision of a Supreme Court judge who had dismissed the College’s initial injunction

application under section 52 of the HPA. The College had applied for an injunction to

stop Coastal Contacts Inc. and an affiliated company, Clearly Contacts, Ltd.,33 from

selling, dispensing or otherwise furnishing prescription contact lens in what the

30 Health Professions Council, Psychologists Scope of Practice Preliminary Report (1999). 31 In its 2001 Post-Hearing Update of Preliminary Report: Psychologists, the HPC rejected the professions

request that psychologists also be granted psychotherapy as a new, additional restricted activity.: 32 2009 BCCA 459 (BCCA) 33 Herein I will refer to these companies as simply Coastal Contacts.

19

College felt was a contravention of sections 5(3) and (4)(c) of the Opticians

Regulation.34

Coastal Contacts sold prescription contact lenses through its website.

Someone wanting to purchase prescription contact lenses completed an on-line

form agreeing that they had a valid prescription and allowing Coastal Contacts to

contact the provider if necessary to verify the prescription. However, a purchaser

was not required to actually submit a prescription or send in a copy. Most on-line

purchasers simply filled in an on-line form taking the necessary information from an

existing box of prescription contact lenses. Coastal Contacts employees, who are not

opticians, then matched the recorded information to existing stock and mailed the

lenses to the purchaser.

The legal issue facing the Court of Appeal was whether or not the word

“prescription,” as used in the Opticians Regulation, required that an optician had to

directly see and verify the information set out in an actual written prescription. The

majority view was that this was a requirement of the Opticians Regulation, and,

therefore, Coastal Contacts had breached that regulation.35 The Court ruled that

Coastal Contacts had breached the Opticians Regulation, and granted the

injunction.36

As I have noted above, section 52 of the HPA gives a college the option to

seek an injunction against someone who breaches a legislative provision and, in

particular, someone who beaches either the title protection or restricted activity

provisions of a designation regulation. This means that the wording of a profession-

specific restricted activity set out in a designation regulation must create a clear

prohibition, the contravention of which could then be addressed under section 52.

34 B.C. Reg. 487/94. 35 The minority view was that a direct verification was not a requirement; that the company could rely on consumers to provide the necessary information to then allow Coastal Contacts’ employees to dispense the ordered contact lenses. 36 But the Court went further and suspended the effect of that order until May 2010. This was to give the respondent company enough time to revise their business model to comply with the Opticians Regulation, if not also seek to have that regulation amended to accommodate their then current business model.

20

The relevant provisions of the Opticians Regulation that were considered by

the Court of Appeal in the Coastal Contacts case read (emphasis added):

Reserved acts 5… (3) Subject to section 14 of the Act, no person other than a contact lens fitter may fill a prescription by fitting and dispensing contact lenses.

As shown by the underlined text, section 5(3) of the Opticians Regulation

uses wording that creates a clear prohibition: “no person… may fill a prescription….”

This wording gave the College a clear legal foundation to apply for an injunction

against Costal Contacts.

On the other hand, many profession-specific restricted activities set out in

other profession designation regulations are not worded in a way that creates a

clear prohibition. Using an example from section 5 of the Dental Hygienists

Regulation, this section reads (in part, my emphasis):

Restricted activity 5. No person other than a registrant may

(a) perform supragingival and subgingival scaling, subgingival debridement or root planing, or (b) administer oral local anaesthetic.

The use of “may” in this section is permissive and, unlike the mandatory

prohibition set out in section 5(3) of the Opticians Regulation, this wording does not

create a clear prohibition that could then be used successfully to support an

application for an injunction under section 52 of the HPA.37

If Part 4.1 of the HPA was in force, then section 50.2 of the Act could be used

by the College of Dental Hygienists to seek an injunction against someone who was

performing one of the general restricted activities, because that would be a breach

37 This problem was apparently recognized by the drafters of certain of certain health profession

designation regulations where the profession used to be regulated by a separate, dedicated statute. For example, section 4(2) of the Chiropractors Regulation states: “Only a registrant may provide a service of chiropractic as set out in this regulation if, on the day before this section comes into force, the provision of the same service by anyone other than a person authorized under the Chiropractors Act was prohibited.” Thus, this section could be used to mount an application for an injunction despite the use of permissive “may” in section 4(1) that lists the profession-specific restricted activities granted to chiropractors.

21

of a clear prohibition under a different enforcement provision of the Act. The fact

that Part 4.1 is not currently available means that, should the College decide to seek

an injunction, the absence of a clear and expressed prohibition in section 5 of the DH

Regulation would likely result in the court rejecting such an application. And, in

turn, the College would then most likely be faced with paying some if not most of the

respondent’s legal costs in defending his or her posistion.

Another case that involved a clinical counsellor illustrates how the wording

in a regulation can determine whether or not there is a clear prohibition that is thus

enforceable under section 52 of the HPA.

In the 2007 case of College of Psychologists of BC v. Utendale,38 the College

sought an injunction against Dr. Utendale pursuant to section 52 of the HPA. Dr.

Utendale held a PhD in social psychology, called himself a Psychotherapist, practiced

as a psychotherapist and clinical counsellor, was a member of the BCACC, but was

not a registrant of the College of Psychologists.

One of the legal issues the Court had to address was whether the wording in

section 4 of the Psychologists Regulation39 prohibited Dr. Utendale from practising

psychology. This brief section of the Regulation simply stated (emphasis added): “A

registrant may practice psychology.”

In rejecting the College’s application for an injunction on this issue, the Court

found that section 4 of the Psychologists Regulation simply stated that registrants of

the College may practice psychology. In particular, the Court pointed out that it was

clear from this wording that psychologists had not been granted any sort of

“restricted activity” over psychology or a monopoly over any other aspect of

psychological services. As a result, the Court found that anyone, including Dr.

Utendale, could practice psychology.

38 2007 BCSC 824, [2008] B.C.W.L.D. 831, 2007 CarswellBC 1336. 39 B.C. Reg. 442/99.

22

Even if psychological diagnosis is eventually granted to psychologists as a

profession-specific restricted activity under the Psychologists Regulation, unless

that provision is written using prescriptive wording that creates an actual

prohibition, it would be highly unlikely that the College of Psychogists could then

enforce that grant against non-registrants. On the other hand, the College might be

able to assert such a claim if and when new Part 4.1 of the HPA is eventually

proclaimed into force, but until then that enforcment option is not available to any

college.

CONCLUSIONS

There is currently no provision in the HPA that directly regulates the making

of a psychological diagnosis, be this an activity that is performed by psychologists or

any other regulated health profession.

In 2003 the BC Legislature passed an amendment to the HPA to add a new

Part 4.1, and when these new provisions are eventually proclaimed into force, this

new Part will create a mechanism that could be used to regulate diagnosis and other

general restricted activities. Given the correct set of facts, this Part could then be

used to prevent non-regulated health professions from providing or making a

psychological diagnosis. Until this Part comes into force, however, it has no legal

effect.

The HPC’s 1998 recommendation that psychologists be granted the

profession-specific restricted activity of psychological diagnosis also has not yet

been acted on. The Ministry has not given any indication when or even if it will

eventually take steps to amend the Psychologists Regulation to thus grant

psychological diagnosis as a restricted activity for this profession.40 Given that the

Utendale case makes it clear that psychologists do not have a monopoly over the

40 Even if psychologists are eventually granted psychological diagnosis as a profession-specific restricted

activity, such a grant will have to use wording that creates a clear prohibition. Otherwise, it also could not be enforced under the HPA, as indicated by the Coastal Contacts case.

23

provision of psychological services, it follows that psychologists also do not

currently control the specific function of making a psychological diagnosis.

In summary, until such time as Part 4.1 of the HPA and the necessary

regulation amendments come into force, there is no clear prohibition under the HPA

that prevents clinical counsellors or anyone else from making or communicating a

psychological diagnosis, be this using the DSM or not. Thus, using the terminology of

the Supreme Court of Canada in the Abbey case,41 there is currently no rule that

prevents a counsellor from otherwise being found to be an expert and thus able to

provide a psychological diagnosis.

COMMENTARY

Even in the absence of a clear prohibition under the HPA or within any

profession’s designation regulation that would prevent counsellors from providing

or making a psychological diagnosis, a counsellor may still have to take additional

steps to support a diagnosis that the counsellor may have made concerning a

particular individual. This additional step is the last one that was identified by the

Supreme Court of Canada in the 1982 Abbey case. It requires that a counsellor who

is offering a psychological diagnosis in a report be someone who is a properly

qualified expert and thus competent to provide such an opinion.

For example, if a counsellor is asked to provide an opinion that involves

making a psychological diagnosis, for that opinion to then be accepted in a court or

administrative tribunal as an expert opinion, the counsellor may have to also

demonstrate that he or she has the necessary competencies and experiences to

make such a diagnosis. Whether or not the court or tribunal would accept the

counsellor as an expert (and thus accept the counsellor’s psychological diagnosis)

41 R. v. Abbey [1982] 2 S.C.R. 24, 138 D.L.R. (3d) 202, [1983] 1 W.W.R. 251, 68 C.C.C. (2d) 394, 39 B.C.L.R. 201 (SCC); R. v. Mohan, 1994 CarswellOnt 1155, [1994] 2 R.C.S. 9, 29 C.R. (4th) 243, 18 O.R. (3d) 160 (note), 166 N.R. 245, 89 C.C.C. (3d) 402, [1994] 2 S.C.R. 9, 71 O.A.C. 241, 114 D.L.R. (4th) 419, J.E. 94-778 (SCC); R. v. J.-L.J., 2000 S.C.C. 51, [2000] 2 S.C.R. 600192 D.L.R. (4th) 416, 148 C.C.C. (3d) 487, 37 C.R. (5th) 203 (SCC).

24

are issues dealt with separately and in more detail in Legal Commentary on Clinical

Counsellors’ Expert Reports.42 This other commentary should be consulted for more

guidance on a counsellor’s role as an expert in a legal proceeding.

That said, so long as the court or tribunal has accepted a counsellor as an

expert, in particular as someone who is capable of making a psychological diagnosis,

such a finding should be sufficient for the adjudicative body to then adopt or apply

the counsellor’s conclusions. Again, with no active legal prohibition under the HPA

that prevents a counsellor from making a psychological diagnosis, the only

remaining hurdle would be whether the court or tribunal would accept the

counsellor’s qualifications as a foundation upon which to base such an opinion.

42 A revised, second edition of this legal commentary will be posted on the membership side of the

BCACC website in the near future under Legal Articles.