Bureau comments on Manitoba's new regulation on dental hygiene

April 23, 2008

College of Dental Hygienists of Manitoba Transitional Council
c/o Barbara Millar
Legislative Unit
Manitoba Health

300 Carlton Street
Winnipeg, Manitoba R3B 3M9

Attention: Mickey Emmons Wener, RDH, Council Chair

Dear Ms. Emmons Wener:

Comments on Dental Hygienists Regulation

The Competition Bureau (the "Bureau") notes with interest that the profession of dental hygiene in Manitoba has embarked on a new path with the proclamation of the Dental Hygienists Act Footnote 1 on April 15, 2008. Dental hygienists in Manitoba have now joined a growing number of their counterparts in other provinces as self‑regulated professionals. We acknowledge the hard work done by the College of Dental Hygienists of Manitoba Transitional Council. It is through your efforts that this proclamation has been made possible and that the regulation that will shape the practice reality of hygienists as they move forward has been developed.

We would like to offer our comments on the practice framework imbedded in the regulation. As you may be aware, the Bureau has commented on similar regulatory initiatives in other jurisdictions and welcomes the opportunity to do so with respect to Manitoba.

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The role of the Competition Bureau

The Bureau contributes to the prosperity of Canadians by protecting and promoting competitive markets and enabling informed consumer choice. 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.

The Act defines a number of practices that are prohibited as criminal offences or that are subject to review by the Competition Tribunal under the civil provisions of the Act. It does not provide the Bureau with any authority to decide the law or to compel businesses to adopt any particular type of conduct. For more information on the Bureau, please visit our Web site at www.competitionbureau.gc.ca.

The Bureau promotes competition in two ways. Firstly, as a law enforcement agency, we investigate allegations of anti‑competitive conduct and seek judicial and quasi‑judicial remedies to stop anti‑competitive behaviour. Secondly, 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 encouraging the consideration of the competitive dynamics and implications of proposed regulatory schemes in the developmental stage, it will not become necessary 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, that innovation is rewarded and that consumers are offered the broadest scope of services at the most competitive prices.

Self‑regulating professions are an area of interest to the Bureau, and we have a long history of interaction and study of such markets. Recently, the Bureau released a study examining common restrictions on professions that may hinder competition ("the professions study").Footnote 2 Based on our experience with other professions, our recent study and our work to date with respect to the market for dental hygiene services, the Bureau sees clear benefits to having this market being subject to market forces to a greater extent

The dental hygiene regulation

The regulation should certainly see greater access to dental hygiene care for Manitobans than they have had in the previous regulatory environment. It is noted, that in seeking to achieve this goal, Manitoba has taken a different approach than other jurisdictions which have recently revised their regulations, namely Alberta, Ontario and Nova Scotia. In some respects, the regulation imposes a relatively less restrictive regime, such as the inclusion of administering oral anaesthetic within the dental hygiene scope of practice, which is not common to all recently revised regimes. Other provinces may choose to consider some of these features when reviewing their own provisions. In other respects however, Manitoba has chosen a more restrictive environment than other jurisdictions.

Setting‑based restrictions and patient‑based restrictions

In revising their legislation and regulations, some provinces have clearly made a presumption in favour of hygienists being able to perform "included practice"Footnote 3 such as scaling and root planing on their own initiative, subject in part to limitations on the ability to self‑initiate these procedures predicated on concerns for patient health and safety. In those jurisdictions, as in Manitoba, those limitations are triggered by the situation of the particular patient in question. The regulation for Manitoba goes further by predicating whether or not an otherwise qualified hygienist may perform an included practice on not only the circumstances of the patient, but also the setting in which such work is to be performed.

With respect to the factor of the patient's health, the Bureau notes positively that the regulation is less restrictive than other provinces. For example, a hygienist may consult with a nurse practitioner in a greater range of circumstances in Manitoba than in Ontario. It also calls for "consulting" with a range of health practitioners, including physicians, dentists and pharmacists so that the hygienist may be satisfied that it is appropriate and safe to proceed, which may be seen as a less restrictive measure than some jurisdictions. In Ontario, for example, a hygienist must obtain "clearance" from a dentist or physician and only from a nurse practitioner in instances of cardiac concerns. This speaks to the Bureau's point in the professions study that any restrictions be the minimum necessary to achieve the stated objective.

In stipulating that hygienists may only perform included practices in an enumerated list of settings, Manitoba has chosen to establish a restriction that may impede competition. Of the four settings articulated in the regulation, two pre‑suppose a relationship between the patient and a dentistFootnote 4. Although hygienists may perform included practices in the context of a facility or in the context of an oral health program, as those settings are defined in the regulation, there does not seem to be an opportunity to fully compete to provide dental hygiene services. As an example, while a hygienist may wish to enter the market by operating a mobile business serving clients in their homes, this ability in Manitoba is to be restricted to instances where a patient's dentist approves of the setting. Although some of these patients may be served under the auspices of an oral health program, there would still appear to be a gap in the ability to participate in the market. There may be other patients who do not have a dentist who will remain unattended, leaving an unsatisfied demand in the market. This creates a situation where, at least in part, the ability of a hygienist to enter the market may be constrained by dentists who arguably have an economic incentive to impede such competition. It is hoped that this setting‑based restriction will not become the same type of market impediment that was observed when the Ontario market was subject to the requirement that hygienists operate under an order from a dentist.

It is not the Bureau's role to comment on whether this restriction is valid in terms of addressing issues of patient health or safety. We do however reiterate the twin principles that regulation should be the minimum necessary to achieve stated objectives and that restrictions should be directly linked to clear and verifiable outcomes. In this instance, it is difficult to discern the underlying objective that is achieved by using a setting‑based restriction such as is found in s.2(1) of the regulation. If the restriction is, in fact, an attempt to address patient health and safety, then we would urge regulators to articulate how this objective is to be achieved by s.2(1), particularly given the apparent similar objectives of s.3, which sets out the circumstances whereby a hygienist may perform included acts without the supervision of a dentist and are rooted in the condition of the individual patient.

Mobility

It is noted that the provisions with respect to entry to the profession and the minimum number of hours required to perform included acts without the supervision of a dentist are approximately equivalent to those recently revised in other provinces and that this will assist in keeping barriers to mobility at a minimum.

Provision for review

In reviewing the regulation, we note that there is explicit provision for a review of the effectiveness of operation of the regulation after a period of five years. In so doing, the drafters have addressed one of the principles of effective regulation identified in the recent study by the Bureau, namely that a regulatory scheme should allow for periodic assessment of its effectiveness and be subject to regular reviews. It is our sincere hope that such reviews in the future will be informed by a consideration of competition issues, as well as the need to meet health and safetybased policy objectives, as we feel that these are not mutually exclusive considerations.

We hope that moving forward, the Bureau's perspective will be useful to you as the profession of dental hygiene in Manitoba steps into the self‑regulated arena, and we invite you to contact Janet Holmes at 819‑953‑8654 should you require any assistance in considering competition‑related concerns in the future.

We also look forward to asking for and receiving your assistance in the future, as we seek comments on our recently announced follow‑up to the 2007 study on self‑regulating professions, which will examine the interaction of competition and regulation as it relates to dentistry.

Yours truly,

Sheridan Scott

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