Dental Hygienists' Act — An Act respecting the regulation of the profession of Dental Hygiene

December 22, 2005

Mr. Dennis Holland
Senior Director
Policy, Planning and Legislation
Government of Nova Scotia
Department of Health
P.O. Box 488
Halifax, Nova Scotia
B3J 2R8

Dear Mr. Holland:

RE: Dental Hygienists' Act ‑ an Act respecting the regulation of the profession of dental hygiene

I am writing about the proposed legislation to establish self‑regulation for dental hygienists in Nova Scotia. I would like to thank you for the opportunity to make this submission. I hope that the Competition Bureau ("the Bureau") can bring a unique and important perspective to your work.

The proposed legislation would allow dental hygiene to be a self‑regulated profession with its own college, the College of Dental Hygienists of Nova Scotia. The Bureau supports the Department of Health's (the Department) initiative to create the College and hopefully establish meaningful competition in the provision of dental hygiene services in Nova Scotia (the "market"). Allowing for competition between and among providers of dental hygiene services will promote the efficient, low cost and innovative provision of services. The Bureau believes that having regard to the considerations described below will help ensure that the potential benefits of competition are fully realized.

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The role of the Competition Bureau

The Commissioner of Competition (the "Commissioner") is responsible for the administration and enforcement of the Competition Act (the "Act") which is a federal statute of general application to all sectors of the Canadian economy. In this capacity, I head the Competition Bureau of Canada, a branch of Industry Canada. The primary purpose of this legislation, as set out in section 1.1 of the Act, is to maintain and encourage competition in Canada in order to promote the efficiency of the Canadian economy and to provide consumers with competitive prices and product choices.

The Act defines a number of practices that are prohibited as criminal offences or are subject to review by the Competition Tribunal under the civil provisions of the Act. The Act does not provide the Bureau with any authority to decide the law or to compel business to adopt any particular type of conduct. Should you wish to have further information on the Bureau, I would refer you to our website, available at www.competitionbureau.gc.ca.

The Bureau promotes competition in two ways. We are a law enforcement agency. We investigate allegations of anti‑competitive conduct seeking judicial and quasi‑judicial remedies to stop anti‑competitive behaviour. We also act as an advocate for competition. To that end, we frequently make submissions to legislative bodies or regulators on how to implement reforms that encourage competition.

By engaging in advocacy for competition, the Bureau has the opportunity to ensure that competitive factors are taken into consideration in the formulation of policies. We hope that by having the competitive dynamics and implications of proposed regulatory schemes considered in the developmental stage, it will become unnecessary to consider them in the context of future investigations into alleged anti‑competitive conduct.

The Act is based on the premise that competition is the best means of ensuring that resources are allocated efficiently, innovation is rewarded, and consumers are offered the broadest scope of services at the most competitive prices. Emerging professions are an area of interest to the Bureau, and we have a long history of interaction and study of such markets. Based on that experience, as well as specific study of the market for dental hygiene services, the Bureau sees clear benefits to having the market being subject to the same competitive pressures as other sectors of the economy.

The Bureau welcomes this opportunity to provide its views on the proposed Dental Hygienists' Act – An Act Respecting the Regulation of the Profession of Dental Hygiene as well as any regulations that may follow. In so doing, I will outline below some general considerations when regulating professions, followed by some specific comments with respect to the establishment of self‑regulation for dental hygienists.

Self‑regulation of dental hygienists

Historically, dental hygienists have practised within a dental office, as employees and under the supervision of a dentist. As a result of better oral care and an aging population, the demand for dental hygiene services is increasing. Recently, attempts to respond to this demand have seen the development of alternative models of dental hygiene delivery which allow for dental hygienists to initiate dental hygiene care without the supervision of a dentist ("self‑initiate"). Several provinces in Canada have recognized dental hygiene as a self‑regulated profession. This has been the case in Quebec since 1975, and the trend has continued across the country since then. In Ontario, dental hygienists have been self‑regulating with limited self‑initiation since the early 1990s. Most recently, legislative amendments in Manitoba have seen the profession of dental hygiene take this further evolutionary step.

The proposed legislation

We have reviewed the proposed bill that is currently under consideration (Dental Hygienists' Act – An Act Respecting the Regulation of the Profession of Dental Hygiene). In addition, we have also examined the regulatory regimes of several jurisdictions for their ability to enhance competition and improve consumer welfare.

The proposed bill would provide for the establishment of the College of Dental Hygienists of Nova Scotia (the "College"), an independent regulatory body tasked with the governance of dental hygienists in the best interests of the public. One of the goals of the College will be to regulate the profession of dental hygiene through:

  1. the registration, licensing and disciplinary processes established pursuant to this Act and the Regulations made thereunder;
  2. establishing, maintaining and developing standards of practice for members;
  3. establishing, maintaining and developing standards of professional ethics for members; and
  4. establishing, maintaining and developing standards for the education, knowledge, qualifications, professional responsibility and competence of its members and applicants for membership. Footnote 1

General considerations when creating self‑regulating organizations (SRO's)

Certain professions in Canada are self‑governing in the belief that the members of the profession can best assure the protection of the public interest in the supply of that profession's services. Inherent in this belief is the assumption that while competition is beneficial for most sectors of the economy, the public needs to be assured that professionals are meeting certain standards of service. As a result, provincial governments have, in some cases, delegated to certain professional groups the authority to set standards that control entry, restrict the method of service delivery, dictate firm organization, regulate the prices to be charged or restrict the dissemination of information to the public regarding the prices and availability of their services.

While advocates of regulatory restrictions on professions may argue that such restrictions have increased the quality of service and are therefore justified, it is important to examine the cost at which any such benefits have been achieved. Regulatory restraints on competition have long been recognized as detrimental to the public interest in that they erect barriers to entry and expansion, distort the allocation of resources, limit access to professional services and discourage innovation and change. Artificial regulatory barriers can depress the competitive vigour of a market, leading to increased prices, poorer quality and less consumer choice.

The Bureau recognises that legitimate public interests other than the efficient allocation of resources may be at issue in governing the provision of professional services. The scope of regulatory intervention should, however, be limited to those circumstances in which no equally effective but less costly policy response can be developed, having regard to the need to protect vulnerable clients and third parties. Restrictions on the normal competitive process, such as the right to practice, should be regarded as an extreme regulatory response, justified only by the most compelling circumstances.

Regulation should clearly and effectively address legitimate concerns without unnecessarily restricting competition. Regulations should be reasonably necessary for the protection of the public and should not restrict competition any more than is needed to achieve the desired objectives. It is important that regulation not hinder competition by, for example, imposing excessive compliance costs. For regulations to be socially beneficial, the benefits of regulation must at least outweigh the direct costs to businesses.

To this end, a regulatory scheme should include objectives clearly stating the reasons for its being established and the outcomes it intends to achieve. Rather than simply presenting broad general principles, the scheme should address specific, stated problems and include performance standards. Another way to help minimize unnecessary or overly restrictive regulation is to make the promotion of competition a primary objective for an SRO.

A primary objective of the regulatory framework should be to promote open and effectively competitive markets. Open and effective competition provides the most generally effective means to promote the efficient, low cost and innovative supply of products meeting consumers' tastes and needs. Except in certain cases, for instance the protection of public safety, the Bureau supports the promotion of open and effective competition as a key goal of regulation.

In the Bureau's view, a market may be considered open and effectively competitive if the following conditions are met: (i) all potential competitors have the ability to compete, subject to any necessary technical, safety or other such requirements, based on their costs and ability to meet consumer demands at a lower price; and (ii) no participant in the market has sufficient market power to profitably sustain a significant and non‑transitory price increase. Only where these conditions are met can competition be expected to provide the maximum benefits in terms of low prices and the efficient use of economic resources.

The regulatory environment should neither favour nor constrain the ability of particular market participants to compete in the market. In all markets, there will be some businesses that are more effective competitors than others. A regulatory environment should not try to offset these differences or in any way try to establish equality among competitors. Rather, it should provide a market framework within which all firms thrive or fail on the basis of their ability to meet consumers' demands at the best combination of price and quality. Only where such conditions exist will the efficient allocation of output among competing suppliers be possible, and total welfare be maximized.

The regulatory process must be impartial and not self‑serving. To accomplish this, the governing body must broadly represent all aspects of the profession being regulated. No single class of persons should dominate the governing body. This will ensure that no particular market participant or group of market participants will be able to control the regulatory process and manipulate it to their advantage.

Governance of the SRO should ensure the transparency of self‑regulatory activities. Independent public membership should at least balance professional representation on the SRO's board of directors. In addition to consumer or user representation, the public directors should include representatives of the appropriate regulatory authority. Such representation helps ensure that self‑regulatory activities are in the broader public interest by providing a public window on the SRO's operations.

The SRO should institute a formal complaint handling process. The SRO should make provision for the lodging and handling of complaints with respect to the full range of its activities and responsibilities. It should incorporate performance criteria that provides a standard for effective complaints handling. The regulatory authority overseeing the SRO should provide independent review of complaint handling decisions as required.

A regulatory scheme should allow for periodic assessment of its effectiveness and be subject to regular reviews. The SRO should produce annual reports on its activities and provision should be made for regular reviews to ensure that the regulatory scheme is effectively meeting current needs.

Care must be taken when delegating enforcement powers to professional self‑regulatory organizations. It is important to ensure that such powers cannot be used to restrict competition among incumbents any more than is necessary, or to erect any unnecessary barriers to entry by new competitors.

Specific considerations when regulating dental hygienists

When regulating any market for the delivery of health care, finding a balance between patient safety and access to the market is challenging. Patient‑safety is important. However, achieving optimal patient safety at the lowest cost to consumer welfare should be the goal of regulation.

By establishing the College, the Department will presumably recognize registered dental hygienists as a profession capable of performing dental hygiene services. The role of the College, as described in the draft legislation, will be to protect public safety through the registration, licensing and discipline of dental hygienists as well as establishing, maintaining and developing standards of ethics, competence and practice for dental hygienists. If, for instance, a dental hygienist does not act in a patient's best interests, it should be the College, and not a competing profession, which disciplines the member and takes preventative action with other members.

If the Department is of the opinion that further safeguards beyond those maintained by the College are needed, we encourage the Department to establish those safeguards at as low a cost to consumer welfare as possible. Allowing oversight of one profession by a competing profession may increase safety for some patients but likely at a cost to total welfare that outweighs its benefits.

The Department may be concerned that fracturing the "collaboration" between dental hygienists and dentists will harm patients or that requiring "teamwork" between the two professions is necessary for patient safety. Of course, proper patient safety requires teamwork and collaboration between health care professionals. However, Nova Scotia must be careful if it attempts to legislate teamwork or collaboration to protect public safety. Other provinces have created Colleges for registered dental hygienists but allowed dentists some control over the ability of dental hygienists to self‑initiate. These controls, though implemented for public safety, provide the means by which access to dental hygiene services may be restricted. In Ontario, for instance, dental hygienists can self‑initiate controlled acts only with an order from a member of the Royal College of Dental Surgeons of Ontario. Requiring an order to be in place before dental hygiene services are delivered may place unnecessary restrictions on the ability of patients to access dental hygiene services.

British Columbia is another province that restricts self‑initiation. In British Columbia, dental hygienists can self‑initiate as long as their client has seen a dentist within the previous 365 days ("the 365 day rule"). The 365 day rule may harm consumer welfare in that it could restrict the ability of consumers to choose how often they access dental hygiene care based on their needs and resources. The 365 day rule forces those who can not access dental care to forego access to dental hygiene care, as well. As indicated earlier, the Bureau advocates regulation that should address legitimate concerns without restricting competition anymore than required to achieve public safety objectives.

Less costly ways of creating additional protections for consumers, if necessary, should be sought. Any control that one profession has over a competing profession may reduce or prevent competition and harm consumers. If dentists are allowed to limit the ability of dental hygienists to self‑initiate, access to dental hygiene services for certain groups may be unnecessarily restricted.

Unsatisfied demand in the market

We understand that dental hygienists who are able to self‑initiate are much more flexible and mobile in their delivery of dental hygiene services than are dentists. Dental hygienists generally use equipment that is more easily transportable than dentists. By virtue of their mobility, dental hygienists can more easily go where their services are needed, whether to patients' homes or residences or to remote communities. Particular segments of society are unable to access oral care within the traditional setting of a dentist's office and would benefit most from the ability of dental hygienists to self‑initiate. These groups include the disabled, those with certain ailments, the elderly, aboriginals or those located in rural areas who are under‑served by traditional models of oral care delivery.

It is the Bureau's opinion that establishing a model of self‑regulation that would allow registered dental hygienists to self‑initiate would make the market more efficient. In other words, a broader base of consumers would be able to receive dental hygiene care, thus improving consumer welfare and achieving public health objectives. Increased access to care is a competitively desirable outcome because it increases the choices available to consumers.

Lower cost of dental hygiene services

Dental hygienists who self‑initiate may charge prices for dental hygiene services that are lower than similar services offered through a traditional dental office because the equipment and overhead needed by dental hygienists is less costly than the equipment and overhead needed by dentists. As well, generally accepted economic principles show that the introduction of competition into a previously monopolistic market will lower prices in that market.

Lower prices in the market will allow those consumers who lack the resources to obtain dental hygiene services at the current prices to obtain dental hygiene care in the future. In addition, those already accessing dental hygiene services may be expected to do so more frequently if those services were available at a competitive price.

Incentives of the Professions Competing to Supply Dental Hygiene Services.

The market for the provision of dental hygiene services in Canada generates revenues worth billions of dollars annually. We understand that the delivery of dental hygiene services generates the majority of the revenues in a dental office. We also understand that dental hygiene services generate revenues far in excess of their costs to the dentist. Footnote 2 The ability of dental hygienists employed by dentists to generate net revenues for the dental practices creates a powerful economic incentive for the dentists to restrict the ability of dental hygienists to compete in the market. The growing importance of dental hygiene services to consumers also creates incentives for dental hygienists to seek the ability to self‑initiate. Open and effective competition between and among these professions will likely promote the efficient, low cost and innovative supply of dental hygiene services to meet consumers' needs.

Conclusion

The Bureau supports the Department of Health's initiative to create the College. We also hope that the Department intends to establish meaningful competition in the market. By allowing competition between providers of dental hygiene services, the Department will promote the efficient, low cost and innovative provision of dental hygiene services. The Bureau believes that taking into account the considerations described above will help ensure that the potential benefits of competition in the market are achieved.

If, however, the Department is of the opinion that further measures of public safety beyond those maintained by the College are needed, we urge the Department to establish those safeguards at as low a cost to consumer welfare as possible. A legislative scheme that allows one profession to control patient access to another may be inefficient and detrimental to the consumers of Nova Scotia.

Again, I would like to thank you for the opportunity to present the Bureau's views. Should you require any further clarification, please do not hesitate to contact Competition Law Officer Janet Holmes at 819‑953‑8654. The Bureau is ready and willing to assist in evaluating any further proposed legislative or regulatory initiatives that might be forthcoming.

Yours truly,

Sheridan Scott

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