The pandemic has accelerated the deployment of telehealth, which encompasses any professional services provided at a distance, and of new business models. This raises important issues, particularly in the field of health and human relations. 

However, providers of such services are not always aware of the standards that apply, and even if they are aware, they are not always ready to comply with them. Furthermore, citizens are not always informed of the issues related to telepractice, and in some cases, particularly for cost reasons, they prefer to use services offered by individuals whose activities are not monitored by regulatory bodies. 

In an interjurisdictional context, the levers available to regulatory bodies to protect the public are not always adequate. Two judgments in the case of College of Optometrists of Ontario v. Essilor Group remind us that the scope of regulators’ powers is sometimes limited when the client and the practitioner are not in the same jurisdiction, and that restrictions may be imposed, particularly by courts, on the regulatory framework. 

Currently, Québec’s professional system does not offer a concerted response when it comes to regulating telepractice services in an interjurisdictional context. This situation can be explained in part by the fact that not everyone agrees on the regulatory position to adopt. Two positions coexist in this regard: where the client is located versus where the professional is located. This context is not unique to Québec.  

How can a regulatory body protect the public and ensure that the framework it offers remains effective and relevant when professional services are offered at a distance by a person located outside of its jurisdiction? 

Development of an analytical framework for telepractice 

In an effort to contribute to this reflection and provide guidance to the players in the professional system, the Conseil interprofessionnel du Québec (the “Conseil”), the umbrella organization of Québec’s 46 professional orders, has examined the issues related to telepractice. At the conclusion of its work, the Conseil produced a report in April 2021 that presents seven key principles for regulating telepractice in an interjurisdictional context. These principles provide a framework for analysis that can be used by any regulator. 

In 2019, along with colleagues from other Canadian provinces, I gave a talk that addressed, among other things, the impact of the Essilor decision on Canadian regulators. My colleagues agreed with me that, considering the limitations that can be imposed on the telepractice framework because of the territorial limits of the provinces’ legislative authority, a discussion should be initiated within regulatory bodies to better inform the public about issues related to telepractice. It was at this point that I felt we needed to focus on the interests underlying the two traditional positions taken by regulators concerning telepractice regulation. 

Drawing on principled negotiation and Right-touch regulation, I suggested to the Conseil to continue the work on telepractice by focusing on the added value regulators bring to remedies available to the public. 

The Conseil then established an interjurisdictional telepractice working group with a mandate to identify a common base of values and fundamental elements to consider regarding telepractice in an interjurisdictional context. Based on this work, key principles were then developed, in collaboration with the working group and with the input of external experts, to guide the Conseil and its stakeholders in the regulation of telepractice in an interjurisdictional context. 

Key principles 

The Conseil’s April 2021 report details each of the seven key principles identified: information, standards, competency, quality, accessibility, redress, and collaboration. 

The first principle is information. Individuals who wish to use professional services at a distance must be aware of the benefits, limitations, and risks of using such services, as well as the remedies available to them, to provide informed consent. Regulators and their members need to be proactive in helping to ensure that information is available to the public. 

With respect to standards, it is critical that individuals providing professional services at a distance familiarize themselves with the applicable standards and comply with them. Where there is a discrepancy between applicable standards, the standard most favorable to protect the public shall prevail. Professional judgment is required to select an acceptable course of action in such cases. 

The principle of competency reiterates that people offering professional services at a distance must be competent and have the knowledge and skills required for the technology they use, but they must also be able to deal with the situation and condition of the individuals who seek to use these services. The primacy of public protection must guide professional judgment, particularly with respect to the confidentiality and security of personal data. 

The principle of quality reiterates that professional services, whether offered in person or through telepractice, must be of equal quality and that the use of telepractice cannot undermine that quality. 

Furthermore, the use of telepractice must not compromise the accessibility of professional services. It must be remembered that some people, including people in vulnerable situations, especially economically vulnerable situations, are not always able to use telepractice [note: this document is in French]. In addition, access to remedies offered by regulators must not be jeopardized by the use of telepractice, as the credibility and indeed the legitimacy of those regulators are at stake. 

Finally, government authorities and regulators need to work together to ensure that telepractice is regulated effectively from a public protection perspective. Government authorities have a role to play in helping regulators build bridges and even facilitate agreements with their counterparts in other jurisdictions. 

Telepractice principles should inspire constructive responses 

The seven key principles provide a framework for analysis that may pave the way for solutions, and possibly new avenues, for the regulation of telepractice in an interjurisdictional context, to ensure the protection of the public. 

Although they relate to the regulation of telepractice in an interjurisdictional context, it is hoped that these principles will be useful in guiding anyone who offers or wishes to offer professional services at a distance. Indeed, as one of the experts consulted noted, these principles should also inspire reactions that are beneficial to professional practices and public protection. 

Julie de Gongre is a lawyer who has been a Member of Barreau du Québec since 2002. She is the Director of Legal Affairs of the Conseil interprofessionnel du Québec. Maître de Gongre worked for several professional colleges, including the Collège des médecins du Québec, the Ordre des comptables en management accrédités du Québec (now called Ordre des comptables professionnels agréés du Québec) and the Ordre des traducteurs, terminologues et interprètes agréés du Québec. Maître de Gongre joined the permanent team of the Conseil interprofessionnel du Québec in April 2009, where she is in charge of legal affairs. She is a member of the Bar of Montreal’s Professional and Disciplinary Law Committee since 2010 and a member of the Council on Licensure, Enforcement and Regulation’s (CLEAR) Compliance & Discipline Subcommittee since 2013.