of Bill :
WHEREAS the New Brunswick Association of Optometrists prays that it be enacted as hereinafter set forth;
THEREFORE, Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1 This Act may be cited as the Optometry Act, 2004.
2 The following definitions apply in this Act.
"Association" means the New Brunswick Association of Optometrists. (Association)
"Board" means the Board of Examiners appointed under subsection 14(1). (Commission)
"Certified Therapeutic Optometrist" means an optometrist who holds a certification to administer pharmaceutical drugs. (optométriste thérapeute accrédité)
"Council" means the Council of the New Brunswick Association of Optometrists. (Conseil)
"Court" means The Court of Queen's Bench of New Brunswick. (Cour)
"diagnostic drug licence" means a licence for the use of diagnostic drugs. (permis de médicaments diagnostiques)
"diagnostic drugs" mean those drugs listed by category in the by-laws and administered for the diagnosis of visual defects or abnormal conditions of the eye or its adnexa. (médicaments diagnostiques)
"health professional" means a person who provides a service related to
(a) the preservation or improvement of the health of individuals,
(b) the diagnosis, treatment or care of individuals who are injured, sick, disabled or infirm,
and who is regulated under a private Act of the Legislature with respect to the provision of the service and includes a social worker registered under the New Brunswick Association of Social Workers Act, 1988. (professionnel de la santé)
"lay person" means a person who
(a) is not employed in the public service of New Brunswick or any agency of the Crown, or
(b) is not or has not been registered under this Act or any act governing a health practice or allied health discipline. (profane)
"lenses" means lenses to treat or correct visual defects or abnormal conditions of the human eye, and includes contact lenses whether for corrective or cosmetic purposes. (lentilles)
"licence" means a licence for the practice of optometry under this Act. (permis)
"member" means an optometrist who is a member of the Association in good standing licensed to practise optometry under the provisions of this Act, provided that an optometrist whose licence is revoked or expired, who resigns as a member, or whose licence is suspended, continues to be subject to the jurisdiction of the Association for any conduct or acts that would constitute professional misconduct or incompetence referable to the time when the person was licensed, or to the period of suspension. (membre)
"member in good standing" means a person who is licensed to practise optometry under the provisions of this Act, is registered as a member, is not in default of any amounts owing to the Association, and is not under suspension. (membre en règle)
"Minister" means the Minister of Health and Wellness, or as named from time to time. (ministre)
"optometrist" means a person licensed to practise optometry under the provisions of this Act and who is registered as a member of the Association. (optométriste)
"pharmaceutical drugs" mean those drugs listed by category in the by-laws and administered for the diagnosis or treatment of visual defects or abnormal conditions of the eye or its adnexa. (médicaments)
"practice of optometry" means those functions usually performed by an optometrist including:
(a) the examination of the human eye and its adnexa by any acceptable procedure to diagnose visual defects or abnormal conditions;
(b) the treatment of visual defects or abnormal conditions of the human eye or its adnexa by the use of any acceptable procedures, other than surgery, including the prescription and application of lenses or other devices, and the use of pharmaceutical drugs;
(c) the removal of superficial foreign bodies from the human eye or its adnexa. (exercer l'optométrie)
"professional corporation" means a corporation having a permit in good standing pursuant to the provisions of this Act for the practice of optometry. (corporation professionnelle)
"registrar" means the registrar appointed under subsection 10(1) or such person as appointed by Council to carry out the functions of registrar or to replace the registrar from time to time. (registraire)
3 The New Brunswick Association of Optometrists as constituted prior to this Act continues as a body corporate without share capital.
4(1) The membership of the Association consists of all persons holding a licence to practise optometry under the provisions of this Act, and who are registered as members.
4(2) Every person presently registered for the practice of optometry under the provisions of the Optometry Act, 1978, chapter 73 of the Acts of New Brunswick, 1978, as amended, and every person who becomes registered under the provisions of this Act shall constitute a body corporate under the name of the New Brunswick Association of Optometrists or Association des Optométristes du Nouveau-Brunswick.
5 The objects of the Association are to
(a) regulate the practice of optometry,
(b) govern its members in accordance with this Act and the by-laws in order to serve and protect the public interest,
(c) establish, maintain, define, develop and enforce standards of competence and qualifications for the practice of optometry, including the required knowledge, skill and continuing education,
(d) establish, maintain, define, develop and enforce standards of professional conduct,
(e) promote public awareness of the profession of optometry and role of the Association, and to ensure communication and co-operation with other professional organizations for the advancement of the profession of optometry and in the best interests of the public,
(f) negotiate with government and other parties on behalf of members of the Association, and
(g) address issues of importance to the practice of optometry and for the protection of the public interest.
6 The Association, in furtherance of its objects, shall have the power to
(a) provide for the discipline, government, control and honour of persons practising optometry in New Brunswick, including the power to establish, maintain, define, develop and enforce standards of practice and professional conduct,
(b) provide for the delegation to staff of functions relating to the practice of optometry,
(c) acquire and hold assets and property, both real and personal, by way of purchase, lease, grant, hire, exchange or otherwise, to dispose of and manage such assets and property, and to manage its affairs and business, including the employment of staff,
(d) borrow and spend money for the purpose of carrying out any of its objects, and to give security for money borrowed on any of its real or personal property by way of mortgage, pledge, charge or otherwise,
(e) invest money not immediately required for any of its objects, in any manner as it may from time to time determine,
(f) establish and maintain an official register of members entitled to practise optometry in New Brunswick,
(g) fix and collect fees payable by any person
(i) upon application to become a member or for a licence or certification,
(ii) to write an examination prescribed by the Association for the purpose of becoming a member, to qualify for a licence or certification, to maintain membership, or for continuing education, or
(iii) as annual fees,
(h) assess members for any ordinary, special or extraordinary expenditure that may be deemed necessary or expedient to further any of the objects of the Association,
(i) prescribe the qualifications as to education, character, and experience required by any person before being registered to practise optometry in New Brunswick, including mandatory continuing education for members as a condition of registration as an optometrist,
(j) provide for the determination, by examination or other means, of the competency of persons seeking to be registered as an optometrist and grant certificates of registration to persons qualified to practise optometry,
(k) arrange and establish ways and means by which members may advance their training and level of skill in the practice of optometry,
(l) enter into agreements on behalf of the Association as may be necessary or conducive to carry out the objects of the Association,
(m) exempt any person from the payment of fees, dues or assessments for such reason and upon such terms and conditions as the Association may from time to time determine, and suspend members for non-payment,
(n) receive gifts, donations and bequests, and make gifts or donations for the promotion of the objects of the Association,
(o) regulate advertising,
(p) establish minimum standard tariff of fees,
(q) call and regulate meetings and the method of voting,
(r) provide for the eligibility, nomination, election, number and term of office, and duties of members of Council and committees, including the appointment and revocation of persons as ex officio or honorary officers or members of Council or the Association,
(s) provide for the establishment of committees by the Association or Council, prescribe their powers, duties, and method of operation, including procedures at meetings and for filling vacancies; and provide for the delegation of powers or duties of Council to any committee, and to establish the form and frequency of reports to Council or the Association,
(t) establish categories of membership in the Association, and prescribe the privileges, obligations and conditions of membership,
(u) provide for the establishment and payment of scholarships, fellowships, and other educational incentives, benefits and awards by the Association,
(v) provide for procedures of the Complaints and Discipline Committees,
(w) provide for a system of peer review of a member's practice, its administration and enforcement by the Complaints and Discipline Committees,
(x) provide for meetings of Council and committees by conference telephone or other communications by means of which all persons may equally participate in the meeting,
(y) prescribe forms and provide for their use,
(z) do all other things necessary or desirable to exercise the powers conferred by this Act and any powers incidental thereto.
7(1) For the purpose of attaining its objects, and for the implementation of its powers, the Association may make by-laws not inconsistent with the provisions of this Act.
7(2) No by-law, amendment, or repeal of a by-law shall be effective until passed by resolution of sixty-six percent of members voting,
(a) at the annual general meeting, or
(b) at a special meeting of the Association called for that purpose.
7(3) A proposed new by-law, amendment or repeal of a by-law, shall be in writing signed by at least two members, and shall be presented to the secretary who shall include a copy in the notice calling the meeting.
7(4) No new by-law, or the amendment or repeal of a by-law which provides for the qualifications and eligibility of a person to be registered to practise optometry, or which provides for continuing education, standards of practice, or the use of drugs, shall come into force until approved by the Minister.
8(1) There shall be a Council of the Association consisting of
(a) the president, vice-president, past president and secretary-treasurer,
(b) two additional members, and
(c) the New Brunswick delegate to the Canadian Association of Optometrists,
all of whom shall be elected by the membership of the Association in the manner and for the terms prescribed in the by-laws, and
(d) one lay person to act as lay representative on Council who shall be appointed by the Minister from a panel proposed by Council.
8(2) There shall be an Executive Committee consisting of the president, vice-president, past president and secretary-treasurer, together with such additional members as provided by by-law.
8(3) Subject to the provisions of this Act and the by-laws, the management of the Association shall be vested in Council and the Executive Committee.
8(4) Four members of Council shall constitute a quorum for the transaction of business.
9(1) The term of office of members of Council shall be fixed by by-law.
9(2) Notwithstanding subsection (1), in the event of a vacancy occurring on Council, except the office of president, the vacancy shall be filled for the balance of the unexpired term
(a) where the vacancy is with respect to a person elected under paragraphs 8(1)(a), (b) or (c), by Council appointing a replacement, and
(b) where the vacancy is with respect to a person appointed under paragraph 8(1)(d), by the Minister appointing a replacement from names proposed by Council.
9(3) The members of Council and Executive Committee in office when this Act comes into force shall continue in office until their successors are elected or appointed in accordance with this Act and the by-laws.
9(4) At the first meeting following the election of Council, or as soon after as possible, Council shall appoint such other persons or committees as may be necessary for the carrying out of the provisions of this Act, all of whom shall hold office during the pleasure of Council or as provided by by-law.
10(1) Council may appoint a registrar as provided in the by-laws.
10(2) The registrar shall carry out such functions and exercise such powers as Council may determine from time to time.
RULES BY COUNCIL
11(1) Council may make rules not inconsistent with the provisions of this Act or the by-laws providing for
(a) the appointment, revocation and filling of vacancies on committees,
(b) calling and conducting meetings of all committees,
(c) preliminary investigations into the conduct of a member,
(d) the custody and use of the Association seal,
(e) the execution of documents by the Association,
(f) banking and finance,
(g) calling and conducting meetings of Council and the duties of members of Council,
(h) the payment of necessary expenses of Council and committees in the conduct of their business,
(i) the management of the property of the Association,
(j) the appointment, composition, powers and duties of additional or special committees,
(k) the application of the funds of the Association and the investment and reinvestment of any of its funds not immediately required, and for the safekeeping of its securities.
11(2) A rule proposed by Council under subsection (1) is not effective until confirmed by resolution of Council.
12(1) There shall be an annual general meeting of the Association at such time and place, and upon such notice as fixed by by-law.
12(2) Thirty percent of members shall constitute a quorum for the transaction of business at an annual general meeting.
13(1) A special meeting of the Association shall be held at the request of Council or at the request in writing to the secretary-treasurer of not less than ten members of the Association, or such number as provided in the by-laws, stating the subject matter for the meeting.
13(2) A special meeting shall be held at such time and place, and upon such notice as the president determines, and within sixty days of the date of receipt of the request to the secretary-treasurer under subsection (1).
BOARD OF EXAMINERS
14(1) There shall be a Board of Examiners consisting of three members in good standing elected as provided in the by-laws.
14(2) Members of the Board at the time this Act comes into force shall remain in office until replaced under subsection (3).
14(3) Following a Board member's term of office, all members of the Board shall be elected for a term of three years, and may be re-elected.
14(4) Council shall designate one of the members of the Board as chairperson.
14(5) The majority of members of the Board constitute a quorum.
14(6) The Board shall administer the criteria for licencing as provided in the by-laws.
14(7) Council may provide for allowances for expenses to be paid to members of the Board.
15(1) A person who meets the qualifications and requirements prescribed in the by-laws may apply to be registered as an optometrist.
15(2) A person who has not practised optometry for three years shall not practise optometry until the person's qualifications have been reviewed and approved by the Board in accordance with the by-laws.
15(3) Notwithstanding anything in this Act, the Association may refuse to register any person who
(a) has been convicted of an indictable offence,
(b) has been refused registration in a jurisdiction outside of New Brunswick,
(c) has been subject to disciplinary action in a jurisdiction outside of New Brunswick, or
(d) for any other reason is considered by the Association unfit to practise in New Brunswick.
REGISTRATION AND FEES
16(1) Council shall provide for a register in which shall be entered the name, address and qualifications of every optometrist licensed to practise optometry in New Brunswick.
16(2) Before a licence is issued, it shall be numbered and recorded in the register and its number shall be noted on the licence.
17 The licence of every optometrist shall be displayed in a conspicuous place in every office where the optometrist practises optometry.
18 Each member shall pay to the secretary-treasurer the annual fees prescribed by by-law, and upon payment shall receive an annual renewal of licence.
19(1) The licence of a member in default of payment of annual fees may be revoked by Council upon thirty days' written notice being given by the secretary-treasurer to the member.
19(2) Where a licence is revoked under subsection (1) it may be reissued by Council upon payment of any outstanding fees together with any penalty as provided in the by-laws.
19(3) Where a member is not in full active practice, Council may waive the payment of part or all of the fees, subject to such conditions as it may prescribe.
PHARMACEUTICAL CERTIFICATION BOARD
20(1) There shall be a Pharmaceutical Certification Board consisting of five persons appointed in accordance with the by-laws as follows:
(a) the chairperson of the Board of Examiners,
(b) two members of the Association appointed by Council, and
(c) two members appointed by the Minister, one of whom shall be a licensed pharmacist.
20(2) The Pharmaceutical Certification Board shall
(a) by by-law establish the requirements necessary for certification to administer pharmaceutical drugs,
(b) verify the successful completion of such requirements,
(c) certify optometrists who are qualified to prescribe and administer pharmaceutical drugs,
(d) establish requirements necessary for the renewal of certification, and
(e) recommend to the Minister the formulary of categories to be used as pharmaceutical drugs.
PRACTICE OF OPTOMETRY
21(1) Except as otherwise provided in this Act, no person other than a member who is not under suspension shall
(a) practise optometry in New Brunswick,
(b) offer to practise optometry in New Brunswick,
(c) hold out or represent to be a member of the Association or entitled by law to practise optometry in New Brunswick, or
(d) except as provided in section 22, take or use the name or title of "Doctor" or "optometrist", or the initials "O.D.", either alone or in combination with any other word or words, or any other name, title, description or abbreviation implying to be a member of the Association or entitled by law to practise optometry in New Brunswick.
21(2) The use by a person of test lenses, charts or devices purporting to determine refractive status or of any other mechanical or electric device for measuring the human eye, its related structures and the human vision system or for testing vision is deemed to be proof, in the absence of evidence to the contrary, that the person is engaging in the practice of optometry.
22 An optometrist licensed under this Act to practise optometry may use the prefix or title "Doctor" or the abbreviation "Dr.", or the initials "O.D.".
23(1) The secretary-treasurer shall issue a permit to any professional corporation that applies upon being satisfied that the following conditions are met:
(a) the corporation has paid the fees prescribed by the by-laws;
(b) the corporation is in good standing as required in the Business Corporations Act;
(c) the corporation, by law or by virtue of its incorporating documents, has the capacity to carry on the practice of optometry;
(d) the name of the corporation is in accordance with the by-laws and contains the words "Professional Corporation";
(e) the legal and beneficial ownership of all the issued voting shares of the corporation are vested in one or more optometrists, all of whom are licensed to practise optometry under the provisions of this Act; and
(f) the persons who will carry on the practice of optometry on behalf of the corporation are optometrists licensed to practise optometry under the provisions of this Act.
23(2) Subject to this Act, a permit entitles a professional corporation to engage in the practice of optometry during the year for which it is issued.
23(3) A permit expires on the last day of December of the year for which it is issued.
23(4) A permit may be revoked or its renewal withheld by Council when any of the conditions specified in subsection (1) are no longer met.
23(5) On issuing a permit to a professional corporation, the secretary-treasurer shall enter its name in a register.
24 If a professional corporation ceases to fulfill any condition specified in subsection 23(1) by reason only of
(a) the death of the licensed optometrist, or
(b) the revocation or suspension of the licence of an optometrist who is a shareholder of the corporation,
the corporation has a period of ninety days from the date of death, revocation or suspension, as the case may be, in which to fulfill the condition, failing which the permit is automatically revoked effective on the expiration of the ninety day period without the necessity of an order of Council, provided, however, that such period may be extended on application to Council.
25(1) Notwithstanding anything to the contrary in the Business Corporations Act, every person who is a shareholder of a professional corporation during the time that it is the holder of a permit is liable to the same extend and in the same manner as if the shareholders were, during that time, carrying on the business of the corporation as a partnership or, if there is only one shareholder, as an individual carrying on the practice of optometry, for anything done contrary to the provisions of this Act or by-laws.
25(2) The liability and obligations of a person in carrying on the practice of optometry is not affected by the fact that the practice of optometry is carried on by the person as an employee and on behalf of a professional corporation.
26 No shareholder of a professional corporation shall enter into a voting trust agreement, proxy or any other type of agreement vesting in another person who is not an optometrist licensed to practise optometry under the provisions of this Act, the authority to exercise the voting rights attached to any or all of that person's shares.
27(1) The registration of a professional corporation is suspended or revoked when the decision to suspend or revoke its permit is made in accordance with this Act.
27(2) The secretary-treasurer shall, after a decision to suspend or revoke a permit has been made, enter a memorandum of suspension or revocation of the registration in the appropriate register indicating
(a) the period of the suspension or revocation, and
(b) the nature of any finding concerning discipline or incompetence.
27(3) The secretary-treasurer shall not remove from the register any memorandum made under subsection (2), except in accordance with the by-laws.
28(1) Council shall appoint annually for a term of one year a Complaints Committee of two members in good standing, one to be named as chairperson.
28(2) Council shall name two alternate members in good standing to the Complaints Committee, neither to be a member of Council, who may be called upon by the chairperson to act as necessary.
28(3) No person who is a member of the Discipline Committee shall be a member of the Complaints Committee.
28(4) Two members of the Complaints Committee constitute a quorum.
28(5) The Complaints Committee shall consider and investigate complaints regarding the conduct of any member but no action shall be taken by the Committee under subsection (6) unless
(a) a written complaint has been filed with the registrar and the member whose conduct is being investigated has been notified by ordinary mail of the complaint and given at least two weeks from the date of mailing in which to submit in writing to the Committee any explanations or representations the member may wish to make concerning the matter, and
(b) the Committee has examined or has made every reasonable effort to examine all relevant records and other documents relating to the complaint.
28(6) The Complaints Committee, in accordance with the information it received, may
(a) direct that the matter be referred, in whole or in part, to the Discipline Committee,
(b) direct that the matter not be referred to the Discipline Committee, or
(c) take such action, including peer review, as it considers appropriate in the circumstances to resolve the complaint, provided that such action is not inconsistent with this Act or the by-laws.
28(7) The Complaints Committee shall give its decision with reasons in writing to the registrar.
28(8) The registrar shall give the complainant and the person complained against a copy of the decision of the Complaints Committee.
29(1) Where the Complaints Committee refers a matter to the Discipline Committee and where the Complaints Committee considers the action necessary to protect the public pending the conduct and completion of proceedings before the Discipline Committee in respect of a member, the Complaints Committee may, subject to subsection (2), make an interim order
(a) directing the registrar to impose specified terms, limitations and conditions upon the member's licence, or
(b) directing the registrar to suspend the member's licence.
29(2) No order shall be made by the Complaints Committee under subsection (1) unless the member has been given
(a) notice of the Committee's intention to make the order, and
(b) at least ten days to make representation to the Committee in respect of the matter after receiving the notice.
29(3) Where the Complaints Committee takes action under subsection (1), the Committee shall notify the member of its decision in writing.
29(4) An order under subsection (1) continues in force until the matter is disposed of by the Discipline Committee, unless the order is stayed pursuant to an application under subsection (5).
29(5) A member against whom action is taken under subsection (1) may apply to the Court for an order staying the action of the Complaints Committee.
29(6) If an order is made under subsection (1) by the Complaints Committee in relation to a matter referred to the Discipline Committee, the Association and the Discipline Committee shall act expeditiously in relation to the matter.
30(1) There shall be a Discipline Committee consisting of
(a) four members in good standing appointed by Council, and,
(b) one lay person appointed by the Minister from names submitted by Council.
30(2) Members of Council who are not appointed to the Discipline Committee shall be alternate members of the Committee and may be called upon by the chairperson of the Committee to act as necessary.
30(3) Subject to subsection (4), five members of the Discipline Committee constitute a quorum and all disciplinary decisions require a vote of a majority of the members of the Committee present at the hearing.
30(4) Where the Discipline Committee commences a hearing and not more than two members become unable to act, the remaining members may complete the hearing and shall have the same authority as the full Committee.
30(5) Council shall name one member of the Discipline Committee to be chairperson.
30(6) Council, by resolution, may direct the Discipline Committee to hold a hearing and determine any allegation of professional misconduct or incompetence on the part of a member.
30(7) The Discipline Committee shall
(a) when so directed by Council, or the Complaints Committee, hear and determine allegations of professional misconduct or incompetence against a member, and
(b) perform such other duties as are assigned to it by Council.
30(8) A member may be found to have committed an act of professional misconduct by the Discipline Committee if
(a) the member has pleaded guilty to or been found guilty in a court of competent jurisdiction of an offence which, in the opinion of the Committee, is relevant to the member's suitability to practise optometry,
(b) the member has sexually abused a patient,
(c) the member has failed to file a report pursuant to section 44, or
(d) the member has, in the opinion of the Committee, committed an act of professional misconduct as defined in the by-laws, or contrary to any codes of ethics or standards in effect at the time of the act complained of.
30(9) The Discipline Committee may find a member to be incompetent if in its opinion
(a) the member has displayed a lack of knowledge, skill or judgement, or disregard for the welfare of the public of such a nature or extent that demonstrates the member is unfit to carry out the responsibilities of a person engaged in the practice of optometry, or
(b) the member is suffering from a physical or mental condition or disorder of such a nature and extent making it desirable in the interests of the public or the member that the member no longer be permitted to engage in the practice of optometry.
30(10) Where the Discipline Committee finds that a member has committed an act of professional misconduct or is incompetent it may, by order, do any one or a combination of the following:
(a) revoke the member's right to practice optometry;
(b) where an order has been made under paragraph (a), specify a period of time before which the member may not apply for reinstatement of the right to practice optometry;
(c) suspend the member's right to practice optometry for a stated period, not exceeding twenty-four months;
(d) impose terms, conditions and limitations on the right to practice optometry;
(e) impose specific restrictions on the right to practice optometry including requiring the member to
(i) engage in the practice of optometry only under the personal supervision and direction of another member,
(ii) accept periodic inspections by the Committee, or its delegate, of the books, accounts, records and work of the member in connection with the member's practice,
(iii) report to the registrar or a committee of Council on such matters with respect to the member's practice for such period and times, and in such form, as the Committee may direct, or
(iv) submit to peer review in such form and to such extent as determined by the Committee;
(f) require that the member be reprimanded or counselled, and, if considered warranted, direct that the fact of the reprimand or counselling be recorded on the register;
(g) revoke or suspend for a stated period of time the designation of the member as a specialist in any branch of optometry;
(h) impose such fine as the Committee considers appropriate, to a maximum of five thousand dollars, to be paid by the member to the Association;
(i) subject to subsection (11), direct that a finding or order of the Committee be in an official publication of the Association in detail or in summary and either with or without the name of the member;
(j) fix the costs, including legal fees, of any investigation or procedures by the Complaints Committee and the Discipline Committee to be paid by the member to the Association; or
(k) direct that the imposition of a penalty be suspended or postponed for such period and upon such terms or for such purposes as may be specified by the Committee, including, but not limited to
(i) the successful completion by the member of a particular course or courses of study, and
(ii) the production to the Committee of evidence satisfactory to it that any physical or mental handicap in respect of which the penalty was imposed has been overcome.
30(11) The Discipline Committee shall cause an order or decision of the Committee revoking or suspending the right to practice optometry be published, with or without the reasons for the decision.
30(12) Where the Discipline Committee makes an order under subsection (10), it may, by order, do one of the following:
(a) direct the registrar to give public notice of any order by the Committee that the registrar is not otherwise required to give under this Act, or
(b) direct the registrar to enter into the records of the Association the result of the proceeding before the Committee and to make the result available to the public.
30(13) The Discipline Committee shall cause a determination by the Committee that an allegation of professional misconduct or incompetence was unfounded to be published upon the request of the member against whom the allegation was made.
30(14) Where the Discipline Committee revokes, suspends or restricts the right to practice optometry on the ground of incompetence or professional misconduct involving sexual abuse of a patient, the decision takes effect immediately, notwithstanding that an appeal is taken from the decision unless the court to which the appeal is taken otherwise orders.
30(15) Where the Discipline Committee revokes, suspends or restricts the right to practice optometry on a ground other than incompetence or professional misconduct involving sexual abuse of a patient, the decision does not take effect until the time for appeal from the decision has expired, or until an appeal has been disposed of or abandoned, except that when the Committee considers it is necessary for the protection of the public it may otherwise order.
30(16) Where the Discipline Committee finds a member guilty of professional misconduct or incompetence a copy of the decision shall be given to the person complaining.
30(17) Notwithstanding that the Discipline Committee has made a decision or order with respect to any matter before it, the Committee retains jurisdiction for the purpose of seeing to the implementation of its decision or order, and may alter or vary its decision or order, or make such further order as it considers necessary.
31(1) In proceedings before the Discipline Committee, the Association and the member whose conduct is the subject of the proceedings are parties to the proceedings.
31(2) A member whose conduct is the subject of proceedings before the Discipline Committee shall be afforded an opportunity to examine before the hearing any written or documentary evidence that will be produced or any report the contents of which will be given in evidence at the hearing.
31(3) A member of the Discipline Committee holding a hearing shall not have taken part before the hearing in any investigation of the subject matter of the hearing other than as a member of Council considering the referral of the matter to the Discipline Committee, or at a previous hearing of the Committee, and shall not communicate, directly or indirectly, in relation to the subject matter of the hearing with any person or with any party or his or her representative except, upon notice to and opportunity for all parties to participate, but the Committee may seek legal advice.
31(4) Hearings of the Discipline Committee shall be held in private.
31(5) The Discipline Committee, or someone designated by it to act on its behalf, may by summons in a form prescribed by by-law, require the attendance before it of any person whose evidence may be material to the subject matter of the hearing and may order any person to produce such records, reports or other documents as appear necessary for the purpose of the hearing.
31(6) A person served with a summons in the form provided by by-law shall attend and answer all questions concerning matters being enquired into at the hearing and shall produce to the Discipline Committee all records, reports or other documents that are under that person's custody or control.
31(7) The testimony of any witness may be taken under oath or affirmation which may be administered by the chairperson of the Discipline Committee or any person designated to do so on its behalf.
31(8) If a person on whom a summons has been served, either personally or by leaving a copy of the summons with some adult at the person's last or most usual place of residence or business, fails to appear before the Discipline Committee, or upon appearing refuses to be sworn or refuses without sufficient cause to answer any questions relevant to the hearing, the Committee may by application to the Court cause the person to be cited for contempt under the provisions of the Rules of Court in the same manner and to the same extent as if the alleged contempt took place in the proceedings before the Court.
31(9) The oral evidence taken before the Discipline Committee shall be recorded and if so required copies of a transcript shall be furnished only to the parties at their own expense.
31(10) No member of the Discipline Committee shall participate in a decision of the Committee following a hearing unless present throughout the hearing and having heard the evidence and argument of the parties.
31(11) Where a proceeding is commenced before the Discipline Committee and the term of office of a member on Council or on the Committee expires or is terminated, other than for cause, before the proceeding is disposed of but after evidence has been heard, the member shall be deemed to remain a member of the Committee for the purpose of completing the disposition of the proceeding in the same manner as if the term of office has not expired or been terminated.
31(12) Documents and things put into evidence at a hearing of the Discipline Committee shall, upon the request of the party who produced them, be returned by the Committee within a reasonable time after the matter in issue has been finally determined.
32(1) Notwithstanding subsection 31(1), but subject to subsection (2), a complainant shall be given notice of and may attend a hearing in its entirety, with or without counsel, and may make a written or oral submission to the Discipline Committee before the calling of evidence and after the completion of evidence.
32(2) At the request of a witness whose testimony is in relation to allegations of a member's misconduct of a sexual nature involving the witness, the Committee may exclude a complainant from the portion of the hearing that receives the testimony of the witness.
32(3) In subsection (2), "allegations of a member's misconduct of a sexual nature" means allegations that the member sexually abused the witness when the witness was a patient of the member.
32(4) The Discipline Committee shall serve the notice on the complainant at least fourteen days before the hearing and the notice shall contain the date, time and place of the hearing.
33(1) A party to proceedings before the Discipline Committee may appeal within thirty days from the date of the decision or order of the Committee to the Court by way of notice of application in accordance with the Rules of Court.
33(2) At the request of a party desiring to appeal, the registrar shall furnish the party with a certified copy of the record of the proceedings, including the documents received in evidence and the decision or order appeal form, upon payment of reasonable costs.
33(3) An appeal under this section may be on questions of law or jurisdiction, or both, and the Court may
(a) affirm, vary or rescind the decision of the Discipline Committee,
(b) direct the Discipline Committee to take any action which it has the power to take, or
(c) refer the matter back to the Discipline Committee for rehearing in whole or in part, in accordance with such directions as the Court considers proper.
34 The registrar may appoint one or more investigators to investigate whether a member has committed an act of professional misconduct or is incompetent if
(a) the Complaints Committee has received a complaint about the member and has requested the registrar to appoint an investigator, or
(b) the registrar has reason to believe that the member has committed an act of professional misconduct or is incompetent and the Council approves the appointment.
35(1) An investigator appointed by the registrar may at any reasonable time, and upon producing proof of appointment, enter and inspect the business premises of a member and examine anything found there that the investigator has reason to believe will provide evidence in respect of the matter being investigated.
35(2) Subsection (1) applies notwithstanding any provision in any act relating to the confidentiality of health records.
35(3) No person shall, without reasonable excuse, obstruct or cause to be obstructed an investigator while the investigator is performing duties under this Act.
35(4) No person shall withhold, conceal or destroy, or cause to be withheld, concealed or destroyed, anything that is relevant to an investigation under this Act.
36(1) Upon the ex parte application of an investigator, if the Court is satisfied on information by oath or solemn affirmation that the investigator has been properly appointed and that there are reasonable grounds for believing that
(a) the conduct of the member being investigated would constitute professional misconduct or incompetence, and
(b) there is in a building, receptacle or place anything that will provide evidence in respect of the matter being investigated,
may issue a warrant authorizing the investigator to enter the building, receptacle or place and search for and examine or remove anything described in the warrant.
36(2) An investigator entering and searching a place under the authority of a warrant issued under subsection (1) may be assisted by other persons and may enter a place by force.
36(3) An investigator entering and searching a place under the authority of a warrant issued under subsection (1) shall produce identification and a copy of the warrant upon request of any person at that place.
36(4) A person conducting an entry or search under the authority of a warrant issued under subsection (1) who finds anything not described in the warrant that the person believes on reasonable grounds will provide evidence in respect of the matter being investigated may seize and remove that thing.
37(1) An investigator may copy, at the expense of the Association, a document that the investigator may examine under subsection 35(1) or under the authority of a warrant issued under subsection 36(1).
37(2) An investigator may remove a document referred to in subsection (1) if it is not practicable to copy it in the place where it is examined or a copy is not sufficient for the purposes of the investigation and may remove any object that is relevant to the investigation and shall provide the person in whose possession it was with a receipt for the document or object.
37(3) An investigator, where a copy can be made, shall return a document removed under subsection (2) as soon as possible after the copy has been made.
37(4) A copy of a document certified by an investigator to be a true copy shall be received in evidence in any proceeding to the same extent and shall have the same evidentiary value as the document itself.
37(5) In this section "document" means a record of information in any form and includes any part of it.
38(1) An investigator shall report the results of the investigation to the registrar in writing.
38(2) The registrar shall report the results of an investigation
(a) to the Complaints Committee, if the investigator was appointed under paragraph 34(a), or
(b) to the Council, if the investigator was appointed under paragraph 34(b).
39(1) The registrar shall forthwith enter into the records of the Association
(a) the result of every proceeding before the Discipline Committee that
(i) resulted in the suspension or revocation of a member's right to practice optometry, or
(ii) resulted in a direction under subsection 30(12), and
(b) where the findings or order of the Discipline Committee that resulted in the suspension or revocation of a member's right to practice optometry or the direction are appealed, a notation that they are under appeal.
39(2) Where an appeal of the findings or order of the Discipline Committee is finally disposed of, the notation referred to in paragraph 1(b) shall be removed and the records adjusted accordingly.
39(3) For the purpose of paragraph 1(a), "result", when used in reference to a proceeding before the Discipline Committee, means the Committee's finding and the penalty imposed and in the case of a finding of professional misconduct, a brief description of the nature of the professional misconduct.
39(4) The registrar shall provide the information contained in the records under subsection (1) to any person who enquires about a member or former member
(a) for an indefinite period if the member or former member was found to have sexually abused a patient, and
(b) for a period of five years following the conclusion of the proceedings referred to in subsection (1) in all other cases.
39(5) The registrar, upon payment of a reasonable fee, shall provide a copy of the information contained in the records referred to in subsection (1) that pertain to a member or former member to a person who requests a copy.
39(6) Notwithstanding subsection (5), the registrar may provide, at the Association's expense, a written statement of the information contained in the records in place of a copy.
40 The Complaints Committee and the Discipline Committee shall each submit a written report annually to Council containing a summary of the complaints received during the preceding year by source and type of complaint and the disposition of such complaints.
41(1) The Association shall undertake measures for prevention of the sexual abuse of patients by its members.
41(2) Such measures referred to in subsection (1) shall include
(a) education of members about sexual abuse,
(b) guidelines for the conduct of members with patients,
(c) providing information to the public respecting such guidelines, and
(d) informing the public as to the complaint procedures under this Act.
41(3) Measures referred to in subsection (2) may, where appropriate, be taken jointly with other organizations or associations of health professionals.
42(1) The Association shall report to the Minister within two years after the commencement of this section, and within thirty days at any time thereafter on the request of the Minister, respecting the measures the Association is taking and has taken to prevent and deal with the sexual abuse of patients by members.
42(2) The Association shall report annually to the Minister respecting any complaints received concerning sexual abuse of patients by members or former members and the resolution of such complaints.
42(3) A report under subsection (2) shall be made within two months after the end of each calendar year and shall contain the following information:
(a) the number of complaints received during the calendar year for which the report is made and the date each complaint was received,
(b) with respect to each complaint received during the calendar year for which the report is made
(i) a description of the complaint in general non-identifying terms,
(ii) the decision of the Complaints Committee with respect to the complaint and the date of the decision,
(iii) if allegations are referred to the Discipline Committee, the decision of the Committee, including any penalty imposed and the date of the decision, and
(iv) whether an appeal was made from the decision of the Discipline Committee and the date and outcome of the appeal, and
(c) with respect to each complaint reported in a previous calendar year, a report on the status of the complaint in accordance with paragraph (b) if the proceedings initiated as a result of the complaint were not finally determined in the calendar year in which the complaint was first received.
43(1) Sexual abuse of a patient by a member means
(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,
(b) touching of a sexual nature of the patient by the member, or
(c) behaviour or remarks of a sexual nature by the member towards the patient.
43(2) For the purposes of subsection (1), "sexual nature" does not including touching, behaviour or remarks of a clinical nature appropriate to the service provided.
44(1) A member who, in the course of practising the profession, has reasonable grounds to believe that another health professional has sexually abused a patient or client and who fails to file a report in writing in accordance with subsection (4) with the governing body of the health professional within twenty-one days after the circumstances occur that give rise to the reasonable grounds for the belief commits an act of professional misconduct.
44(2) A member is not required to file a report pursuant to subsection (1) if the member does not know the name of the health professional who would be the subject of a report.
44(3) If the reasonable grounds for filing a report pursuant to subsection (1) have been obtained from one of the member's patients, the member shall use his or her best efforts to advise the patient that the member is filing the report before doing so.
44(4) A report filed pursuant to subsection (1) shall contain the following information:
(a) the name of the member filing the report,
(b) the name of the health professional who is the subject of the report,
(c) the information the member has of the alleged sexual abuse, and
(d) subject to subsection (5), if the grounds of the member filing the report are related to a particular patient or client of the health professional who is the subject of the report, the name of the patient or client.
44(5) The name of a patient or client who may have been sexually abused shall not be included in a report unless the patient or client, or if the patient or client is incapable the patient's or client's representative, consents in writing to the inclusion of the patient's or client's name.
44(6) Section 43 applies with the necessary modifications to sexual abuse of a patient or client by a health professional.
44(7) No action or other proceeding shall be instituted against any member for filing a report in good faith pursuant to subsection (1).
45(1) Any person not registered to practice as an optometrist under this Act, or whose registration is revoked or suspended, and who
(a) practises as an optometrist in New Brunswick,
(b) uses the title of optometrist, or makes use of any abbreviation of such title, or any name, title or designation which may lead to the belief that the person is an optometrist entitled to practice optometry in New Brunswick, or
(c) advertises or in any way or by any means represents to be an optometrist entitled to practice optometry in New Brunswick,
commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category J offence.
45(2) Any person who procures or attempts to procure admission to the Association for that person or another by making, or causing to be made, any false or fraudulent representation or declaration, either oral or written, or who makes any false statement in any application, declaration or other document under this Act or the by-laws, commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category J offence.
46 Where an offence under this Act is committed by a corporation, including a professional corporation, every director, manager, secretary or other officer of that corporation who has assented to or participated in the commission of the offence is a party to the offence.
47 In any prosecution under this Act, it shall be sufficient proof of an offence if it is proved that the accused has done or committed a single act of unlawful practice, or has committed on one occasion any of the acts prohibited by this Act.
48 Any information alleging an offence under this Act may be laid in accordance with the Provincial Offences Procedure Act in the name of the Association on oath or solemn affirmation of the registrar, or of a person authorized by Council.
49(1) Where an offence under this Act continues for more than one day,
(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and
(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.
49(2) All fines recoverable under this Act shall be paid to the Association, and shall form part of its funds.
50 In any action, proceeding or prosecution, a certificate signed by the registrar, under the seal of the Association, shall be admitted in evidence as prima facie proof of the registration or non-registration of any person as a member or of the suspension from practice of a member, without proof of the official character or handwriting of the registrar or of the seal.
51(1) The Court may, on application by the Association and on being satisfied that there is reason to believe that a person has violated or will violate this Act or a by-law, or has been charged with or convicted of an offence, and it is probable that the person will in future commit or continue to commit the offence, grant an injunction restraining the person from committing or continuing to commit such acts and, pending disposition of the application seeking the injunction, the Court may grant an interim injunction.
51(2) An injunction granted under this section may be enforced in the same manner as an injunction granted to enjoin a civil wrong.
52 Nothing in this Act shall be construed to prevent a person
(a) from practising medicine under the Medical Act,
(b) from practising optical dispensing under the Opticians Act,
(c) from practising nursing under the Nurses Act,
(d) from carrying on any occupation, calling or profession authorized by an Act of the Province,
or require the person to become licensed under this Act to perform such functions.
53(1) In case a vacancy occurs on Council, or any board or committee of the Association, Council shall see that the vacancy is filled as soon as possible.
53(2) Any member of Council, or any member of any board or committee of the Association, may be removed from office at any time by Council for neglect of duty, incompetence, misconduct or other fault, if not a lay person appointed by the Minister.
53(3) In the event of neglect of duty, incompetence, misconduct or other fault on the part of a lay person appointed by the Minister, the Association may request the Minister to appoint a replacement.
54 No action lies against members of Council, officers or directors of the Association, or a member of any board or committee of the Association, or employees or agents of the Association for anything done in good faith under the provisions of this Act or the by-laws.
55 No member shall be personally liable for any debt of the Association beyond the amount of that member's unpaid dues, fees or other amounts for which a member may become liable under this Act or the by-laws.
56 No action against a member for negligence or malpractice in the practice of optometry shall be commenced but within two years from the day of the discovery of the cause of action, or when such cause of action should have been discovered.
57(1) All persons who are members on the day this Act comes into force shall continue as members under this Act.
57(2) All committees in effect on the day this Act comes into force shall continue to act under the Optometry Act, 1978, chapter 73 of the Acts of New Brunswick, 1978, and amendments, until replaced or reconstituted under the provisions of this Act.
57(3) All applications for membership in the Association, and all disciplinary proceedings in progress on the day this Act comes into force, shall be continued and disposed of under the Optometry Act, 1978, chapter 73 of the Acts of New Brunswick, 1978, and amendments.
57(4) All complaints and investigations concerning matters of discipline, incompetence or incapacity received after this Act comes into force shall be dealt with under this Act notwithstanding when the subject matter of the complaint arose.
58 The Optometry Act, 1978, chapter 73 of the Acts of New Brunswick, 1978, is repealed, provided that all by-laws made under the provisions of that Act, and in effect at the time of its repeal, shall continue in effect, with such modifications as the circumstances require, until repealed, amended, or replaced by by-laws enacted under the provisions of this Act.