The Canadian Bar Association
Health

The controlled act of psychotherapy

By Lonny Rosen & Elyse Sunshine

The controlled act

The Regulated Health Professions Act, 1991 (the RHPA) sets out 14 “controlled acts” which may only be performed by regulated health professionals who are members of health colleges whose members are permitted to perform such acts. The RHPA was amended in 2007 to include the controlled act of psychotherapy, defined as:

  1. Treating, by means of psychotherapy technique, delivered through a therapeutic relationship an individual’s serious disorder of thought, cognition, mood, emotional regulation, perception or memory that may seriously impair the individual’s judgement, insight, behaviour, communication or social functioning

Nurses, occupational therapists, physicians, psychologists, psychotherapists, and social workers will all be permitted to perform this controlled act.

Not yet in force… but coming!

This section of the RHPA has not yet been proclaimed in force, meaning that psychotherapy is not yet a controlled act; it is therefore not yet an offence for anyone to perform psychotherapy. However, there are indications that the Government of Ontario will soon proclaim this section in force: the six health colleges whose members would share the controlled act of psychotherapy developed a “consensus document” which would be used to provide clarity to members, applicants and the public about what the act of psychotherapy entails. At its Sept. 8, 2016 meeting, the Council of the College of Registered Psychotherapists (the CRPO) approved a consensus documentUnderstanding When Psychotherapy is a Controlled Act, which was developed by subject matter experts and reviewed by the Ministry of Health and Long-term Care.

What is permitted?

Health care providers have been concerned about the proclamation of this section of the RHPA, as the controlled act of psychotherapy is harder to identify than other controlled acts because it involves numerous elements. These include: the treatment modality; the therapist-client relationship; the purpose of the treatment and assessment; and the health condition of the individual client (i.e. whether they have a mental disorder that is being treated through psychotherapy). All of these elements may be part of the determination as to whether what the health professional is doing is, in fact, psychotherapy. Further, communication made in the course of counselling about emotional, social, educational or spiritual matters is excluded from the controlled act of psychotherapy, but it may be difficult to distinguish between psychotherapy and counselling about emotional matters.

Fortunately, the consensus document provides guidance as to what psychotherapy entails.

What is restricted?

The controlled act of psychotherapy has five components, which are outlined below. Where all five components are met, the therapy will be considered to be the controlled act of psychotherapy, and will soon be restricted. The basis for the controlled act of psychotherapy being restricted to members of six health professions is that it entails a significant risk of harm to clients.

1. Treatment

For the controlled act to used, the practitioner must be providing treatment to the client. Treatment typically requires that the client have a diagnosis or that his or her treatment needs have been assessed. Treatment is defined in the Health Care Consent Act, 1996 to include:

anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan.

There are a number of exceptions to this definition, including assessments, examinations, history-taking, communicating an assessment or diagnosis, admission of a person to a hospital or health facility, a personal assistance services, and treatment that poses little or no risk of harm to the person. Treatment has been given broad interpretation by the courts, and has been found to include interventions to monitor and maintain adequate hydration, physical strength and mobility if these are steps designed to identify, halt and reverse a path of destruction.

The definition of treatment may not include other interventions or supports, such as education, the development of coping mechanisms, or skill building.

2. Psychotherapy technique

Psychotherapy requires that the practitioner use psychotherapy technique in the course of treatment of the client. This would involve one or more interventions or approaches based on recognized psychotherapeutic theories, models or frameworks and/or empirical evidence.

3. Therapeutic relationship

Psychotherapy, as defined in the RHPA, can only be provided in the course of a therapeutic relationship. This requires that the practitioner have a treatment relationship with the individual, through which the practitioner builds a strong therapeutic alliance with the individual, based on clear professional boundaries.

4. A disorder

For the treatment to be considered psychotherapy, the individual receiving the treatment must have an identified serious disorder of thought (delusions or hallucinations, or unwanted or intrusive thoughts that distort an individual’s ability to distinguish between reality and fantasy or that impair an individual’s concentration), cognition (difficulty in understanding the meaning or importance of something, learning new things, concentrating or making decisions), mood (significant lows, with diminished pleasure and interest in activities, or significant and highs marked by elevated mood or irritability), emotional regulation (difficulty controlling emotion, inappropriate emotional responses and marked changes in moods), perception (difficulty recognizing or making sense of sensory stimuli or diminished, exaggerated, distorted or impaired response to the stimuli) or memory (difficulty storing and retrieving or recalling information).

While the individual does not necessarily have to have a diagnosis of a particular mental disorder, to meet the definition of the controlled act of psychotherapy, the individual must have a serious disorder.

5. Impairment

As a result of the individual’s disorder, the individual’s judgment, insight, behaviour, communication or social functioning are impaired. This may mean that the individual has difficulty processing or retaining information, or may be unable to apply information to his or her own circumstances.

Unless all of the criteria above are met, a practitioner may be performing psychotherapy but will not be using the controlled act of psychotherapy.

Counselling and therapy are not controlled acts

It is important to distinguish between counselling, psychotherapy, and the controlled act of psychotherapy.

Counselling, as defined by the Health Professions Regulatory Advisory Council is the broadest of the three, where the focus is on the provision of information, advice-giving, encouragement and instruction. Spiritual counselling is counselling related to religion or faith-based beliefs. Neither counselling nor spiritual counselling are part of a health professional’s scope of practice.

Psychotherapy is defined as “an intense client-therapist relationship which often involves the examination of deeply emotional experiences, destructive behaviour patterns and serious mental health issues.” Although psychotherapy is within the scope of practice of health professionals of various disciplines, it is not restricted to these professionals.

Only psychotherapy involves the five elements referred to above will it be a controlled act, restricted to members of certain health professions.

What is the risk?

It is important for all practitioners who provide psychotherapy to determine whether they are permitted to perform the controlled act, and to ensure that they are not doing so if not permitted to do so, as performance of a controlled act by a person who is not authorized to perform it is a contravention of the RHPA. A person who does so is guilty of an offence and on conviction is liable to a fine of not more than $25,000, or to imprisonment for a term of not more than one year, or both for a first offence!

Read More at Rosen Sunshine LLP Blog

To Read More Elyse Sunshine Posts Click Here
To Read More Lonny Rosen Posts Click Here
Lawyer Directory
BPFG: NEW AD TO ROTAE MONTHLY WITH BICOToronto Lawyers AssociationMKD InternationalFeldstein Family LawInfoware Canada Fireman DayaBenson Percival Brown - Flat Box Ad Unit - 300x125Bales Beall LLP