In December 2019, just before the holiday season, Pontiac Hospital in Shawville, Qué., not too far from the Ontario border, shut down its obstetric services for 21 days. It was the 10th closure of its obstetric services since September.
These closures meant that without specialized staff, women who were ready to give birth had to go to another hospital, over an hour’s drive away. This came at a time when there is already a shortage of family doctors in the Outaouais region, which lies just north of Ottawa.
The causes of this shortage of family physicians are complex, and we should avoid magical thinking when looking for solutions. Yet these service interruptions raise a legitimate question: should a medical doctor who is fully licensed in Ontario be allowed to practise on the Québec side of the Ottawa River to help alleviate the shortage, without going through all the paperwork, costs and delays required to obtain a practice licence in Québec?
Many doctors think so, judging by the results of a survey conducted in 2019 by the Canadian Medical Association (CMA). Based on the answers provided by 7,000 of its members, the CMA claims that “nine out of 10 physicians support the establishment of a national licence to practice and three quarters believe that this will improve access to health care”.
Other Canadian medical stakeholders also appear to be in favour of such a measure, citing the need to facilitate replacements (locums) for doctors in underserved regions as well as interprovincial medical teleconsultations.
This seems to be a reasonable proposition. But would it be possible, from a legal perspective, to implement a national licence for doctors and other health-care providers considering that professional regulation falls under provincial jurisdiction?
I have more than 20 years of academic and professional experience in health law and policy. I’m particularly interested in trying to improve the Canadian professional regulation framework on such issues, to address the challenges presented by issues like workforce shortages and new technologies.
Similarities with securities
A 2018 Supreme Court of Canada ruling on securities regulation suggests what could be the legal basis for a national medical licence.
Although securities fall under provincial jurisdiction, the federal government and the governments of some provinces and territories have proposed a legislative system of co-operation. This includes a model statute that may be passed by the legislatures of the provinces and territories to regulate various aspects of the securities business, as well as a federal statute to prevent and manage systemic risk and to establish criminal offences relating to financial markets. A national securities regulator would be in charge of making this system work, under the supervision of a federal-provincial council of ministers.
Despite strong opposition from some provinces, the Supreme Court indicated that such a regime would respect provincial jurisdiction, since provinces would not be forced to join it. It also concluded that the intervention of the federal government would be justified, considering its own jurisdictions and the national issues involved.
This model is actually very similar to the one that has been put in place in Australia to establish a national licence for all health-care professionals, based on an intergovernmental agreement between the federal government, states and territories.
With these precedents, it is plausible, from a legal point of view, to consider the possibility of implementing a national licensing system for doctors and other health-care providers in Canada.
A professional passport
Another solution, less well integrated but maybe easier to set up from a political and legal perspective, could be to establish a “national professional passport,” perhaps by improving the current labour mobility provisions of the Canadian Free Trade Agreement (CFTA).
This agreement between the federal, provincial and territorial governments commits them to put in place measures allowing people in regulated trades and professions to work anywhere in Canada, without having to comply with additional requirements related to training, experience, competencies, etc.
That said, the CFTA still allows certain provincial and territorial requirements to be maintained, like language proficiency in French or English, registration and permit fees, professional liability insurance and examinations relating to ethical aspects.
The idea of a national passport, based on the elimination or reduction of these obstacles, as well as on a greater administrative co-ordination between provincial regulatory authorities, seems to be supported by the Federation of Medical Regulatory Authorities of Canada (FMRAC).
The idea would be to have something like a Nexus card that would allow physicians to quickly meet the administrative requirements of a province or territory, and be authorized to practice there. This approach is also similar to what the Americans have been trying to implement for a few years, without complete success yet, with the “Interstate Medical Licensure Compact”.
Political will needed
Although complex, the introduction of a national licensure or a national passport for doctors and other health-care professionals could be legally feasible, provided that there is sufficient political will.
However, there would be obstacles to overcome. Examples include some specific provincial requirements such as French knowledge requirements in Quebec, medicare coverage for services provided by out-of-province providers, scope of practice disparities, etc.
Arguably, it is not a given that we can count on the level of federal-provincial co-operation that would be required to remove these obstacles. Let’s just consider that the pan‑Canadian securities regulation is still facing a steady opposition from some provinces, not to mention the issues raised by the prospect of a national pharmacare program.
What about public protection?
One thing that should be avoided if a national licensure or a national passport for health-care professionals were implemented, is weakening the public protection that professional regulation aims to support.
Filing a complaint or initiating a disciplinary process is not easy for most patients. It should not be made more complex when a problem occurs with an out-of-province professional providing services through teleconsultation or acting as a replacement.
Patients should still be allowed to rely on the local regulator, which would require closer co-operation between provincial regulatory authorities on disciplinary matters, as well as the harmonization of standards of practice and quality assessment of professionals.
Given all of these factors, establishing a national licensure for doctors and other health-care professionals would certainly not be a walk in the park from a legal and political perspective. To gather sufficient public support, this project should undoubtedly be designed first and foremost to meet the needs of patients and not just to reduce the administrative requirements for professionals.