The Ontario Government Has Proclaimed the Controlled Act of Psychotherapy: These Are the Implications

The controlled act of psychotherapy (the “Controlled Act”) is now in force. The Ontario government’s proclamation of the Controlled Act was accompanied by the inclusion of a two-year transition period, from December 31, 2017 to December 31, 2019. During this time, individuals who provide psychotherapy services will have the opportunity to become registered with an appropriate health regulatory college if they wish to continue to perform the controlled act of psychotherapy or to change their practice. What follows is an update on the Controlled Act and the implications of its recent proclamation.

Background

The Psychotherapy Act, 2007 (the “Psychotherapy Act”) was introduced by the Ontario government in 2007 as part of an initiative to regulate a number of new health professions in the province. An act becomes law when it comes into force, and most of the provisions of the Psychotherapy Act were not proclaimed in force until April 2015. At that time, the College of Registered Psychotherapists of Ontario (“CRPO”) was established to regulate members of the profession in the public interest and most sections of the Psychotherapy Act came into force. However, the government delayed proclaiming the Controlled Act, meaning that, such that any person could provide psychotherapy despite the existence of the new College.

What is a Controlled Act?

The Regulated Health Professions Act, 1991 (the “RHPA”) is the umbrella legislation that governs Ontario’s 26 health regulatory colleges and their members. The RHPA sets out 14 “controlled acts”, which are activities that are considered to have the potential of posing a risk of harm to patients or clients if performed by unqualified individuals. Accordingly, the 14 controlled acts may only be performed by individuals who are members of health regulatory colleges that have been authorized by law to do so or who have been delegated the performance of a controlled act in accordance with applicable professional regulations and guidelines. Each regulated health profession in Ontario has a different set of controlled acts that they are authorized to perform.

Performance of a controlled act by a person who is not authorized to perform it is a contravention of the RHPA. A person who does so is guilty of an offence and on conviction is liable, for a first offence, to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or both. For a second or subsequent offence, the fine increases to $50,000.

The Controlled Act of Psychotherapy

In 2007, the RHPA was amended to include the controlled act of psychotherapy, which is defined as:

Treating, by means of psychotherapy technique, delivered through a therapeutic relationship, an individual’s serious disorder of thought, cognition, mood, emotional regulation, perception or memory that may seriously impair the individual’s judgement, insight, behaviour, communication or social functioning.

Over ten years after the Psychotherapy Act was passed, and just as the legislative provision amending the RHPA to include the Controlled Act was set to expire on December 31, 2017, the government proclaimed the Controlled Act in force. As of the conclusion of the two-year transition period on December 31, 2019, anyone performing the Controlled Act must be registered with one of the six health regulatory colleges whose members are authorized to practice the controlled act of psychotherapy: the CRPO, the College of Nurses of Ontario (“CNO”), the College of Occupational Therapists of Ontario (“COTO”), the College of Psychologists of Ontario (“CPO”), the College of Physicians and Surgeons of Ontario (“CPSO”), and the Ontario College of Social Workers and Social Service Workers (“OCSWSSW”).

Although the definition of the Controlled Act is set out in the RHPA, it is difficult to identify exactly what type of therapy might qualify as the performance of this act as it involves multiple and complex elements. The Controlled Act can be divided into five distinct components, and an explanation of each of the five elements can help to elucidate what psychotherapy entails:

  1. Treatment

The Controlled Act involves the provision of “treatment” to a patient or client. Treatment is defined in the Health Care Consent Act, 1996 as “anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose”. Psychotherapy treatment would entail a practitioner responding to an assessed need or diagnosis through the use of therapeutic interventions or methods.

  1. Psychotherapy Technique

The Controlled Act requires that a practitioner use a psychotherapy technique in the course of providing treatment to a patient or client. This means that the treatment would involve one or more interventions or methods based on recognized psychotherapeutic theories, models or frameworks and/or empirical evidence.

  1. Therapist-client relationship

The Controlled Act is performed in the course of a therapeutic relationship. This requires the existence of a strong therapeutic alliance between the practitioner and the individual client or patient that is integral to the treatment and based on clear professional boundaries.

  1. A disorder

For a treatment to fall under the controlled act of psychotherapy, the individual receiving the treatment must have an identified serious disorder of thought (delusions or hallucinations, or unwanted or intrusive thoughts that distort an individual’s ability to distinguish between reality and fantasy or that impair an individual’s concentration), cognition (difficulty in understanding the meaning or importance of something, learning new things, concentrating or making decisions), mood (significant lows, with diminished pleasure and interest in activities, or significant and highs marked by elevated mood or irritability), emotional regulation (difficulty controlling emotion, inappropriate emotional responses and marked changes in moods), perception (difficulty recognizing or making sense of sensory stimuli or diminished, exaggerated, distorted or impaired response to the stimuli) or memory (difficulty storing and retrieving or recalling information).

While the individual does not necessarily have to have a diagnosis of a particular mental disorder, for therapy provided to that individual to meet the definition of the controlled act of psychotherapy, the individual must have a serious disorder.

  1. Impairment

Under the Controlled Act, the judgment, insight, behaviour, communication or social functioning of the individual receiving treatment must be impaired by his or her disorder. This may mean that the patient or client has difficulty processing or retaining information, or may be unable to apply information to his or her own circumstances.

Restricted Titles

Performing the Controlled Act is not the only reason a person is required to be registered with an appropriate regulatory college. The titles “psychotherapist,” “registered psychotherapist” and “registered mental health therapist” are restricted, meaning that only members of certain colleges can use these titles verbally and in writing.

Members of each of the CRPO, CNO, COTO, CPSO, CPO, and OCSWSSW are entitled to use the title “psychotherapist”, but only members of the CRPO are entitled to use the title “registered psychotherapist”.

Where a member of one of the six authorized colleges other than the CRPO describes herself (verbally) as a “psychotherapist” to any person, she must also mention the full name of the college of which she is a member and identify herself as a member of that college or she must also identify herself by using the titles restricted to her health profession. When using the title “psychotherapist” in writing, a member’s name must be followed by either the full name of the College of which she is a member, the name of the health profession that the member practises, or the restricted title that the member is entitled to use for her health profession. The title “psychotherapist” must come after all other titles or references to the member’s college. Here are some examples of how a registered nurse practicing psychotherapy could describe herself:

Mary Smith, College of Nurses of Ontario, psychotherapist
Mary Smith, RN, psychotherapist
Mary Smith, registered nurse, psychotherapist

Although “registered mental health therapist” remains a restricted title, the CRPO’s Registration Regulation does not provide for a class of certificate of registration in this category, as was the case in a previous draft. Accordingly, at present, no one is authorized to use this title.

Unless and until an individual is registered with an appropriate college, he or she must refrain from using any of the restricted titles. This includes making reference to a psychotherapy title in business cards, letterhead, e-mail signatures, website profiles, and any other documents.

To Register with the College or Not?

It is tremendously important for anyone who is not registered with a health college whose members are authorized to perform the Controlled Act, and who has concerns about whether their work may fall within the controlled act of psychotherapy, to take steps to ensure that they are practicing in compliance with these new legal and regulatory requirements. While registered psychotherapists, nurses, physicians, occupational therapists, psychologists, and social workers may already be authorized to perform the Controlled Act, the work of many other professionals who work with individuals in a therapeutic setting may be defined as psychotherapy. Similarly, where professionals identify themselves as therapists, or describe their work as therapy, these professionals (and their employers) must ensure that they will not be viewed as performing the Controlled Act without authorization to do so, or they could be in breach of the RHPA.

The Minister of Health and Long-Term Care has tasked the CRPO with the responsibility during the transition period of providing more clarity on the meaning of the controlled act of psychotherapy. In a recent health bulletin, the Minister encouraged unregulated individuals to work with the CRPO to understand whether the services they currently provide involve the provision of psychotherapy as contemplated by the controlled act set out in the RHPA and, therefore, whether they will be required to register with one of the six authorized regulatory colleges in order to continue their current work.

The CRPO has indicated that in order to determine if an individual’s practice (or any part of it) qualifies as the performance of the Controlled Act, it must conduct a thorough review of a full application to become a member of the CRPO. Individuals are encouraged to review the clarification document, Understanding When Psychotherapy is Controlled Act, which was developed by the six health regulatory Colleges in collaboration with subject matter experts and reviewed by the Ministry of Health and Long-Term Care.

For more information regarding this important update or for assistance in determining how the proclamation of the controlled act of psychotherapy applies to your practice, please contact us.

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