Reform of Dental Hygiene Legislation

January 18, 2007

Dr. Cam Witmer, President
Royal College of Dental Surgeons of Ontario
6 Crescent Road
Toronto, Ontario M4W 1T1

Cathie Mazal-Kuula, RDH, President
College of Dental Hygienists of Ontario
69 Bloor Street East, Suite 300
Toronto, Ontario M4W 1A9

Penny White, RDH, President
Ontario Dental Hygienists’ Association
201-3425 Harvester Road
Burlington, Ontario L7N 3N1

Dr. Ian McConnachie
Ontario Dental Association
4 New Street
Toronto, Ontario M5R 1P6

RE: Reform of Dental Hygiene Legislation

I am writing regarding the proposed amendments to the Dental Hygiene Act (DHA) in Ontario, recently tabled as Bill 171. The Competition Bureau (the Bureau) would like to take this opportunity to offer its perspective on the possible implications the amendments would have on competition in the market for dental hygiene services in Ontario. Your organizations were responsible for developing the framework underlying the legislative amendments which have been proposed, and it is your collective members who will determine if the full benefits of these amendments are to be realized. Accordingly, the following comments are directed to those of you who bear the responsibility for shaping the future of dental hygiene in Ontario. I hope that the Bureau can bring a unique and important perspective to the proposed reform.

The proposed amendments to the DHA would permit dental hygienists to continue to perform the controlled acts of scaling and root planing under the order of a member of the Royal College of Dental Surgeons of Ontario (RCDSO). It also, however, creates an important new option for dental hygienists to self-initiate these
controlled acts. In addition, there is a new draft regulation prescribing that a dental hygienist must seek clearance when certain contraindications are known or reported (the proposed regulation). This letter will outline some issues to be considered to make the proposed regulation as effective as possible.

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. 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 choice.

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. The Act 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 website 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 having the competitive dynamics and implications of proposed regulatory schemes considered 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. 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 this market being subject to market forces to a greater extent.

Dental Hygiene in Ontario

Dental hygiene has been a self-regulated profession in Ontario since 1994. Since that time, however, the ability of dental hygienists to work independently of dentists has been circumscribed by the order requirement contained in the Dental Hygiene Act, 1991. As a result of the order requirement, dental hygienists may currently only initiate the controlled acts of scaling and root planing including incidental curettage on the order of a member of the RCDSO.

In the current regime, dental hygienists who choose to work outside the traditional employment relationship with a dentist compete with dentists for the provision of dental hygiene care. When one group of professionals is reliant upon another group of competing professionals for the ability to practice, the Bureau is concerned that access to the market over which the professionals compete will be unnecessarily restricted. In the Bureau’s view, the ability of dental hygienists to compete in the market for dental hygiene services has been substantially limited by the above-noted order requirement. It has served as a significant barrier to entry for independent dental hygienists leaving alternative methods of service delivery for dental hygiene largely unexplored, and has, in our opinion, resulted in decreased patient access to dental hygiene care.

With the proposed changes to the legislation, dental hygienists in Ontario would have the choice to either self-initiate the above-mentioned controlled acts in accordance with the proposed regulation, or to act pursuant to an order of a member of the RCDSO. Specifically, the proposed regulation states that a dental hygienist would have to seek clearance from certain health professionals prior to proceeding or continuing with treatment of a patient who reports or is known to have certain contraindications.

When regulating any market for the delivery of health care, finding a balance between the safety of the patient and an optimal degree of choice for the patient is challenging. Achieving optimal patient safety at the lowest cost to consumer welfare should be the goal of regulation. In that regard, Bill 171 brings about a positive change toward a more efficient market, while it may also facilitate unnecessary restrictions.

Clearance

Under the proposed amendments, dental hygienists would have the obligation to recognize when they are not able to self-initiate the controlled acts. According to the proposed regulation, a dental hygienist would have to seek clearance if the patient has any of the contraindications listed in the proposed regulation. To fully realize the potential benefits of allowing dental hygienists to self-initiate, however, it must be clearly understood by all market participants that the question of whether or not a clearance is necessary, and from whom such a clearance is most appropriately obtained is a matter of professional judgement on the part of the hygienist involved.

The practitioner from whom clearance is sought should be determined by the particular circumstances of each patient. In some instances, it may be most efficient for a registered nurse (extended class) to provide the required clearance, while in others it may be an oncologist, a family physician, or an institutional physician. While the clearance would sometimes have to come from a dentist, the necessity of obtaining a dentist’s clearance would arise from the patient’s circumstances, and not from dentists’ inherent gate-keeping position over dental hygienists.

In the proposed regulation, it is noted that clearance from a nurse practitioner (extended class) is restricted to instances where the patient has cardiac-related contraindications. The Bureau would encourage that these health professionals, subject of course to patient safety concerns, be permitted to provide clearances to dental hygienists in as full a field of circumstances as possible in order to allow greater access and choice for Ontarians. In rural and remote areas of the province, it may be that a nurse practitioner is the primary health care provider for a patient and would be best situated to provide any required clearances.

Standards for education and experience

The question of the level of education and experience required for a dental hygienist to safely self-initiate is an unresolved issue. The Bureau encourages vigilance that any new educational and experiential requirements for self-initiation not become a new barrier that will stand in the stead of the present-day order requirement in restricting the ability of dental hygienists to independently enter the market. In order to minimize this risk, the Bureau encourages that the objectives of any additional experience and educational requirements be clearly stated and that any regulations developed in this regard be clearly tied to the achievement of those objectives. Further, any additional requirements should be as least restrictive as possible so as to avoid developing new barriers to entry.

Once the requisite levels of education and experience are set out in regulation or standards of practice, the question of whether or not an individual dental hygienist has achieved a level of proficiency suitable for self-initiation should be a determination left to the College of Dental Hygienists of Ontario (CDHO). If the ability to ‘sign-off’ on a dental hygienist’s ability to practice independently was left in the hands of a potential competitor, for example, this would create a situation susceptible to unnecessary restraints on competition.

In a similar fashion, if any further educational requirements are to be added to the curricula for dental hygienists, then the parties and the Ministry should take care to ensure that there is a meaningful level of access to such educational programs, and that the admission to these programs is not controlled by competitors.

Assuring Patients’ Choice

The Bureau cautions dentistry to be careful that their members not find themselves in the position of unnecessarily restricting a patient’s choice of oral health care providers. At first glance, there are two ways that one can see that choice could be restricted. Firstly, one could foresee an instance whereby an order is provided but specifies a particular provider. In other words, they are not transportable. The Bureau feels that the preferred competitive outcome would be that orders, when required, be fully transportable much like prescriptions for pharmaceuticals which, once obtained, can be filled at the provider of the patient’s choice.

A patient’s choice could also be restricted in the instance whereby a dentist requires that a patient use his or her own hygiene services as a requirement to access other dental services such as an examination by the dentist. It is the Bureau’s opinion that the preferred competitive outcome be that dental services not be irrevocably tied to hygiene services.

Conclusion

The reality of today’s demographics ensures that there will still be a large number of potential patients who will require an order or clearance prior to receiving dental hygiene care. The Bureau hopes that both the RCDSO and CDHO are able to work together to ensure that the ability of the new legislation, including the proposed regulation to ease the barriers to entry, is not hampered by miscommunication around the implications of providing clearances or orders.

It is the Bureau’s opinion that Bill 171, which amends the Dental Hygiene Act, 1991 to allow for self-initiation by dental hygienists, is a positive step forward in making the market for dental hygiene services more efficient. Upon enactment of the proposed regulation, the Bureau believes that a broader base of consumers will be able to receive dental hygiene care. In taking this step toward a more open and competitive market, the oral health care community has the opportunity to promote a more efficient, lower cost and more innovative provision of dental hygiene services. Increased access to care is a competitively desirable outcome because it increases the choices available to consumers.

Again, I would like to thank you for the opportunity to present the Bureau’s views on this important provincial initiative. Should you require any further clarification, please do not hesitate to contact Janet Holmes, Competition Law Officer 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

c.c. Ms. Marilyn Wang, Director
Program Policy Branch
Ministry of Health and Long-Term Care