Laws

The Canadian constitution includes the Constitution Act, 1867 and the Constitution Act, 1982. All laws in Canada must be consistent with the constitution. The Constitution Act, 1867 indicates that the regulation of professions is within the jurisdiction of each province. The Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982, requires laws not to unreasonably limit certain rights such as freedom of expression, inter-provincial mobility, and equality under the law. The Constitution Act, 1982, recognizes and affirms aboriginal and treaty rights.

Judy lives in Chelsea, Québec, is registered with CRPO, and practices both physically and electronically with clients who live in Ontario. The constitutional right to inter-provincial mobility means she does not need to live in Ontario to be registered with CRPO. Since the regulation of professions is under each province’s jurisdiction, Judy is restricted in the work she can do with clients who live in Québec. If she wants to practise as a psychotherapist in Québec, she would need to qualify for and obtain a psychotherapist permit from the Ordre des psychologues du Québec.

Legislation refers to written laws passed by provincial legislatures or the federal Parliament. When draft legislation is first introduced in the legislature or Parliament, it is known as a bill (e.g., Bill 141). After a bill is passed into law, it becomes an act, also referred to as a statute. A number of acts are discussed throughout this manual.

Many acts include clauses that provide for the subsequent creation of regulations under the act. Regulations provide more details on how the act will be implemented. Under the RHPA, regulations can be proposed by the College (e.g., regarding registration, professional misconduct, and the Quality Assurance Program) or by the Minister of Health (e.g., regarding controlled acts or professional corporations).

Court decisions, also referred to as case law, are used as a guide by lawyers and judges when similar issues arise at a later date. Case law is particularly important in guiding the procedures of College committees (e.g., investigations by the ICRC and decisions of the Discipline Committee).

The RHPA and CRPO’s Professional Misconduct Regulation restrict some of the ways RPs may express themselves. For example, RPs are not permitted to use testimonials in their advertising. RPs are also not allowed to use the title “doctor” when offering or providing healthcare (though registrants with a PhD may use the doctor title in an academic setting). Several other health professionals are also subject to these rules. Ontario courts have found restrictions on testimonials and the doctor title to be constitutional, specifically that they do not unreasonably restrict freedom of expression (Yazdanfar v. The College of Physicians and Surgeons, 2013 ONSC 6420 (CanLII); Berge v College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034 (CanLII)).

By-laws are made by the College Council and deal primarily with internal operations. They also address some administrative matters relating to registration, such as the payment of annual fees, information on the public register, and requirements for professional liability insurance.

In addition to developing regulations and by-laws, the College publishes official documents such as professional practice standards, policies, and position statements. Policies are not actually law; however, they may be considered as evidence in interpreting whether a registrant met their professional obligations, and to assist in consistent decision-making. CRPO’s Professional Misconduct Regulation states that it is professional misconduct to contravene a standard established by the College. CRPO also issues guidelines, which provide additional information and direction for registrants, to help them understand how to meet practice standards. Policies and position statements generally provide guidance to Registrants on specific issues or share CRPO’s position on issues with the public.

This section provides a brief introduction to law and policy at the intersection of the practice of psychotherapy by RPs and Indigenous peoples in Canada. This overview is not intended to be comprehensive. Registrants are strongly encouraged to develop their learning on Canada’s Indigenous people and the ongoing effects of colonization. CRPO may develop learning content focused on this topic as part of registrants’ ongoing professional development requirements. A variety of general learning resources are also available online for registrants to review.*

*For example,

Assembly of First Nations, It’s Our Time: The AFN Education Toolkit;

Métis Nation of Ontario, “Culture & Heritage”;

Pauktuutit Inuit Women of Canada, The Inuit Way: A Guide to Inuit Culture;

Government of Canada, “Indigenous Peoples and Communities”;

The Canadian Research Institute for the Advancement of Women, Colonialism and Its Impacts.

In 2007, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP “establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world”.* UNDRIP touches on healthcare in various ways, including by affirming that “Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health.”** In 2021, the Government of Canada passed legislation committing itself to the implementation of UNDRIP in Canadian law.***

*United Nations Department of Economic and Social Affairs Indigenous Peoples, online.

**Art 24, para 2.

***See Government of Canada, Implementing the United Nations Declaration on the Rights of Indigenous Peoples Act, online

In 2015, the Truth and Reconciliation Commission (TRC) published several reports following its inquiries into the pervasive consequences of Canada’s system of residential schools for Indigenous people. The TRC issued its Calls to Action, including for governments to establish goals and report on progress to close gaps in health outcomes between Aboriginal and non-Aboriginal communities, including for indicators such as mental health and addictions.*

One aspect of closing health outcome gaps is ensuring appropriate competencies are held by RPs interested in working with Indigenous communities, including familiarizing themselves with mental health trends that may differ from the general population to ensure appropriate care. For example, Call to Action #33 acknowledges Fetal Alcohol Spectrum Disorder (FASD) as a high priority health need in Indigenous Communities.

In 2019, the National Inquiry into Missing and Murdered Indigenous Women and Girls issued Calls for Justice, including for governments “to ensure that equitable access to basic rights such as employment, housing, education, safety, and health care is recognized as a fundamental means of protecting Indigenous and human rights, resourced and supported as rights-based programs founded on substantive equality.”** The Calls for Justice also include cultural competency training for public servants and service providers.***

*Calls to Action 19, 55.

**Calls for Justice 1.1.

***Calls for Justice 17.8, 18.18.

In Canada, health policies pertaining specifically to Indigenous communities tend to fall under the general theme of access to care and ensuring equity in accessed services. RPs should be aware of programs available to Indigenous clients and be able to suggest resources where necessary. RPs should also be aware prior to making any suggestions that Métis people are often excluded from federal health benefit programs.

RPs should make themselves aware of other programming offered locally or provincially to support clients.

NIHB provides eligible First Nations and Inuit individuals with coverage for health benefits that are not ordinarily covered through social programs, private insurance, and provincial or territorial health plans. This includes mental health counselling, in addition to vision care, dental care, medical supplies, prescriptions, and medical transportation. RPs providing services through NIHB must be authorized for independent practice, which means being registered in the full RP category, having completed 1000 direct client contact hours, 150 clinical supervision hours, and having this confirmed by CRPO.

An eligible client must be a resident of Canada and any of the following:

• a First Nations person who is registered under the Indian Act  (commonly referred to as a status Indian) as may be expressed by a status card;
• an Inuk recognized by an Inuit land claim organization, as may be expressed by an ID card; or
• a child less than 18 months old whose parent is a registered First Nations person or a recognized Inuk.

Every 12 months, an eligible client can receive 22 hours of counselling performed by an eligible provider, including Registered Psychotherapists, on a fee-for-service basis. Additional service hours may be approved on an individual basis.

Beneficiaries of the program may use the client reimbursement process or may request that service providers directly bill the program through Express Scripts Canada.

Jordan’s Principle is a legal principle that seeks to ensure substantive equity for First Nations children in accessing products, services, and supports they need, including health, social, and educational services. Depending on the needs of an individual, psychotherapy may potentially be covered by Jordan’s Principle.

The principle was put in place following the death of Jordan River Anderson (October 22, 1999-February 2, 2005) from Norway House Cree Nation in Manitoba. Jordan was born with complex medical needs, which spurred a conflict between the provincial and federal government as to which body was responsible for paying for the at-home care suggested by his medical team. As a result of the conflict, Jordan was kept in the hospital until his death in 2005.

Jordan’s Principle seeks to ensure that First Nations children can access needed products, services, and supports. It requires federal and provincial governments to resolve payment issues separately without acting as an impediment to care.

A child under the age of majority in their province/territory of residence can access funding through Jordan’s Principle if they permanently reside in Canada and meet one of the following criteria:

• They are registered or eligible to be registered under the Indian Act.
• They have one parent or guardian who is registered or eligible to be registered under the Indian Act.
• They are recognized by their nation for the purposes of Jordan’s Principle.
• They are ordinarily a resident on a reserve.

The Government of Canada has information on accessing Jordan’s Principle. The First Nations Child and Family Caring Society has also published information on Jordan’s Principle. In addition, a 2019 Canadian Human Rights Tribunal ruling discusses the implementation of Jordan’s Principle.

The Inuit Child First Initiative seeks to ensure Inuit children have access to services when they need them. It covers health, social, and educational products and services.

All Inuit children can request funding through the Inuit Child First Initiative provided they are

• recognized by an Inuit land claim organization; and
• under the age of majority in their province/territory of residence.

Information on the Inuit Child First Initiative from the Government of Canada can be found on this Government of Canada web page.

The federal government has committed to developing distinction-based Indigenous health legislation. The goals of the initiative are to:

• establish overarching principles as the foundation of federal health services for Indigenous peoples;
• support the transformation of health service delivery through collaboration with Indigenous organizations in the development, provision, and improvement of services to increase Indigenous-led health service delivery; and
• continue to advance the Government of Canada’s commitment to reconciliation and a renewed nation-to-nation, Inuit-Crown and government-to-government relationship with Indigenous peoples based on the recognition of rights, respect, co-operation, and partnership.

Consultations have been initiated, but as of the date of this publication, no substantive announcements have been made.

The RHPA establishes the governing framework for regulated health professionals in Ontario. It also sets out exemptions for “aboriginal healers,” defined in the Act as an aboriginal person who provides “traditional healing services to aboriginal persons or members of an aboriginal community.”

Even though traditional Indigenous healing is outside the scope of the RHPA, CRPO has established a voluntary registration pathway that recognizes those trained in Indigenous practices that overlap the scope of psychotherapy.

Ontario’s Mental Health Act (MHA) applies to health care provided by psychiatric facilities. The MHA provides authority for admission to psychiatric facilities and for detention, psychiatric assessment, treatment, and the implementation of community treatment orders (CTOs).`

A person may go to a psychiatric facility voluntarily and be admitted upon the recommendation of a physician. A voluntary client may leave a psychiatric facility at any time and has the right to refuse treatment if they are capable of making treatment decisions.

The MHA does not authorize any person to detain or restrain a voluntary client; however, there is a common law exception that applies to emergency situations where there is a risk of serious bodily harm to the client or another person.

An informal client is a person whose substitute decision-maker has consented to admit them to a psychiatric facility. If the client is 16 years old or over and objects to admission, consent may only be given on the client’s behalf in limited circumstances.

An informal client has the same rights as a voluntary client, except that the client’s substitute decision-maker may be responsible for making certain decisions for the client, including a decision to leave the psychiatric facility.

A person becomes an involuntary client when a physician completes a Certificate of Involuntary Admission (Form 3). An involuntary client does not have the right to leave a psychiatric facility as long as a valid Certificate of Involuntary Admission (Form 3) or Certificate of Renewal (Form 4) is in effect. Through the HCCA, an involuntary client does have the right to refuse treatment if they are capable of making treatment decisions.

A person may be brought involuntarily to a psychiatric facility for assessment, which may result in the client being admitted as a voluntary, informal, or involuntary client. A voluntary client may become an involuntary client if a physician completes a Certificate of Involuntary Admission (Form 3).

The test for involuntary admission is that the physician, upon examining the client, is of the opinion that

1. the client is suffering from a mental disorder of a nature or quality that will likely result in serious bodily harm to the client or to another person, or serious physical impairment of the client, unless the client remains in the custody of a psychiatric facility; and
2. the client is not suitable for admission or continuation as an informal or voluntary client.

A Certificate of Involuntary Admission is valid for up to two weeks. A person may be detained for more than two weeks if a Certificate of Renewal is signed. A first Certificate of Renewal is valid for up to one month; a second for up to two months; and a third for up to three months. Upon the expiry of a Certificate of Involuntary Admission or a Certificate of Renewal, the client automatically becomes a voluntary client unless a new Certificate of Renewal has been signed.

An involuntary client has the right to obtain legal advice, to speak to a rights advisor, and to seek review of the decision before the CCB regarding any decision to issue a Certificate of Involuntary Admission or Certificate of Renewal.

Restraints may be used only for involuntary clients. There is a common law exception that permits the use of restraints on voluntary or informal clients in emergency situations, where there is a risk of serious harm.

Any use of a physical or chemical restraint must be clearly documented in a client’s record, including a description of the means of restraint and behaviour that required the use or continued use of the restraint. In the case of a chemical restraint, the entry must include a statement of the chemical employed, method of administration, and dosage.

It is an offence to violate any provision of the MHA, including the provisions regarding use of restraints. If found guilty, a person may have to pay a fine of up to $25,000.

A physician who believes a person meets the legal test for a psychiatric assessment under the MHA can complete a Form 1 application for a psychiatric assessment. Only a physician is authorized to complete a Form 1 and can do so only if they have examined the person within the past seven days. Once signed, a Form 1 authorizes any person to bring the person named in the application to a psychiatric facility for assessment within seven days of the date the application is signed. Form 1 authorizes the involuntarily detention of the named person for up to 72 hours for the purposes of psychiatric assessment.

Following the psychiatric assessment, the client is either discharged or admitted as a voluntary, informal, or involuntary client.

A physician may complete a Form 1 (Application for Psychiatric Assessment) in the two situations described below.

Situation 1

The physician has examined the person in the past seven days and concludes that the person meets the following tests:

a) the physician has reasonable cause to believe that the person

i. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

ii. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

iii. has shown or is showing a lack of competence to care for themselves; and

b) the physician is of the opinion that the person is apparently suffering from a mental disorder of a nature or quality that likely will result in serious bodily harm to the person or another person, or serious physical impairment of himself or herself.

Situation 2

The physician has previously successfully treated a person for an ongoing or recurring mental disorder that if left untreated would result in serious harm, and if the physician is of the opinion that the person

a) is apparently suffering from the same or a similar mental disorder;

b) the mental disorder will likely result in serious bodily harm to the person or another person, or serious physical impairment of himself or herself; and

c) is incapable of consenting to treatment in a psychiatric facility and the consent of his/her substitute decision-maker has been obtained.

Marsha, an RP, has a new client named Liam. Based on Liam’s reports, Marsha is concerned that Liam is at risk of harming himself. Marsha persuades Liam to see his family physician, who assesses Liam later that day and concludes that Liam meets the test for a Form 1. Liam is transported to the local psychiatric facility where he is detained for the purposes of a psychiatric assessment. Following his assessment, Liam is admitted as a voluntary patient. Liam will reside at the psychiatric facility but may leave at any time unless his status is changed to informal or involuntary.

Ivy, an RP working at a psychiatric facility, meets a voluntary client, Paula, and observes that Paula shows signs of self-harming behaviour. Ivy is aware that a voluntary client cannot be detained or restrained and is concerned that Paula may try to harm herself. Ivy consults with the physician in charge of Paula’s care. The physician assesses Paula and issues a Certificate of Involuntary Admission. Paula is entitled to speak to a Rights Advisor about the decision to involuntarily detain her, and she is entitled to a review of this decision before the CCB.

A physician may issue a CTO, which permits a client to receive psychiatric care and treatment in the community rather than in a psychiatric facility. A CTO is generally made where a client follows a pattern of being successfully treated in a psychiatric facility but destabilizes upon release into the community and must be readmitted.

The client must consent to a community treatment plan. The physician who signs the CTO is responsible for the general supervision and management of the CTO. They may consult with other health care providers to determine whether or not to issue or renew a CTO.

In addition to the physician signing the CTO, a health care provider, including an RP, may be named in a community treatment plan. The health care provider must agree with the plan and is responsible for providing the treatment and care or supervision in accordance with the plan. They may share the client’s personal health information with the physician who signed the CTO, or any other person named in the plan for the purposes of providing the treatment, care, and supervision set out in the plan. This authority to share information prevails over all other law including PHIPA and the HCCA.

If a person subject to a CTO does not comply with its terms, the physician who issued the order may, in some circumstances, issue an order for examination of the person. The examination may result in a Form 1, a new CTO, or release into the community without a CTO. As well, a person may withdraw consent to a CTO, in which case the physician who issued the CTO must review the client’s condition to determine whether the client can live in the community without the CTO. Unless it is renewed or terminated early, a CTO expires after six months.

Maria, an RP, is asked by her client, Hugo, to be a part of his community treatment plan. Maria agrees to be involved in Hugo’s care in the community. Hugo’s physician contacts Maria to discuss her involvement and signs a CTO. Hugo subsequently meets with Maria, and it appears that he has destabilized. He tells Maria he has stopped taking his medication. Maria consults the treatment plan and confirms that Hugo is required to take medication as a term of the CTO. Maria shares this information with the physician who issued the CTO.

If a voluntary client in a psychiatric facility reports to an RP that they are having suicidal thoughts and are planning to immediately leave the facility, the RP should

1. Restrain the client and call security.
2. Provide counselling, immediately notify the person responsible for the administration and management of the psychiatric facility or their delegate (i.e., the officer in charge), and document the incident.
3. Affirm to the client that they are free to leave and help them pack their belongings.
4. Provide counselling and document the incident.

The best answer is 2. While a voluntary client can leave a psychiatric facility at any time, it is possible that the client’s circumstances have changed, and the client now meets the test for a Form 1. A physician may assess the client before they leave, and depending on the results of the assessment, this may result in the client’s status changing to involuntary.

Answer 1 is not the best answer because there is no legal authority to restrain a voluntary client, unless it is clear in the circumstances that immediate action is necessary to prevent serious bodily harm. If it is clearly necessary to restrain the client, the RP must be sure to document the method of restraint and reasons in detail.

Answer 3 is not the best answer because, if there is a risk of suicide, encouraging the client to leave would not be appropriate, and may potentially result in accountability for the RP if the client subsequently dies by suicide.

Answer 4 is not the best answer because it is possible that the client’s circumstances have changed, and the client now meets the test for a Form 1. A physician may assess the client before they leave, and depending on the results of the assessment, this may result in the client’s status changing to involuntary.

The discipline of public health studies and responds to health concerns at the population level. In Canada, responsibility for public health is shared among federal, provincial, and municipal governments.

The Public Health Agency of Canada is the federal agency responsible for public health. Legally, the federal government can impose public health restrictions in federal domains such as cross-border, air, and marine travel.

Public Health Ontario provides information about numerous aspects of public health in the province. Because each province is responsible for the delivery of healthcare and education, as well as regulating property, business, and professions, many public health decisions are within the provincial jurisdiction. For example, during parts of the COVID-19 pandemic, the Ontario government provided directives on when healthcare providers should offer in-person versus virtual care, guidance on infection prevention and control, and rules for masking in public and in healthcare settings.

Regional and municipal public health units monitor and coordinate programs regarding health situations affecting their communities.

CRPO will communicate public health information relevant specifically to registrants, in particular during public health emergencies. Registrants are encouraged to review applicable public health advisories. Registrants are required to observe any applicable mandatory public health measures in effect at a given time.

In some circumstances, psychotherapists may require a municipal license. A municipal license, such as a business license, is granted and regulated by the municipality, and not by the provincial government or the College. A municipal license does not give a therapist the right to be registered with the College.

Municipal licensing applies to all business operators, not just RPs. Generally speaking, the purpose of municipal licensing is to set conditions for the premises in which a business operates, as well as to address public health matters such as sanitation. For example, a municipal inspector may inspect an RP’s office to ensure that protocols are in place to avoid the spread of disease. A municipal licensing body is generally not focused on professional qualifications or professional conduct.

Registrants are responsible for ensuring they meet the licensing requirements and standards of their municipality. If the College requires a higher standard or a different standard than the municipality does, the College’s standard must always be followed, as the RHPA is a provincial statute which takes priority over a municipal by-law.

A contract is a legally binding agreement. People enter contracts by agreeing to exchange something of value (sometimes referred to as the offer and acceptance of consideration). Contracts may be entered in writing or orally. A person who breaches a contract by not fulfilling their part of the agreement may be required to compensate the other party.

Common contracts for RPs include the provision of psychotherapy for payment with a client or joining a practice as an employee or contractor. A key point is not to enter into a contract that would prevent the RP from meeting their professional obligations. For example, an RP must not agree with a potential client that they will not keep any records of the therapy. Entering into such a contract would go against the RP’s professional obligation to maintain records. Likewise, an RP must not promise something to an employer that would go against CRPO requirements. For example, an RP cannot agree with their employer that they will recommend that all clients try a certain product, because it may not be in the interest of all clients to try that product.

A recurring contractual issue among RPs is non-solicitation. A non-solicitation clause aims to prevent an employee or contractor from asking clients to see them at their other practice. An agency may have valid reasons to discourage this, particularly while the RP is still working at the agency (e.g., to avoid the perception that agency staff is treating the organization as a referral source).

The situation is often different in a group private practice context where the motivation is financial. It is common for an RP to leave a group practice and offer clients to transfer to the RP’s new practice if they wish. Courts have refused to enforce non-solicitation clauses that overly restrict a former employee’s right to earn a livelihood. From CRPO’s perspective, the client’s best interests are paramount. RPs should not enter into agreements that prevent a client from making an informed choice of where to receive care, e.g., RPs should not promise their employer that after their employment ends they will never treat a client who they saw through the employer.

A ‘tort’ is a legal wrong that is civil (between private parties) as opposed to criminal in nature. A major tort for RPs to be aware of is negligence or malpractice. An RP engages in negligence if they

• owe a duty of care to a person, e.g., to a client;
• their actions fall below the standard expected of a reasonable psychotherapist; and
• their actions cause injury or harm to the person.

An individual found to have committed negligence or malpractice may be required to compensate the injured party. An example of negligence would be failing to follow up on a client’s disclosure of suicide risk, followed by suicide of the client. If a therapist acts reasonably and the client still incurs harm or injury, the therapist would not be liable for negligence.

Another tort relevant to RPs is breach of fiduciary duty. A fiduciary is someone in a position of trust or power relative to a beneficiary or dependent. An example is a psychotherapist and their client, respectively. A fiduciary is required to act in the best interests of the beneficiary. Examples of breaching one’s fiduciary duty include sexual abuse of a client or entering into business transactions with a client

An apology can help repair a relationship; however, people have worried that an apology could motivate legal action or be used against them. Ontario’s Apology Act, 2009, encourages expressions of sympathy, regret, or contrition. The Act prevents apologies being used as evidence in civil lawsuits or as admissions of fault. Exceptions include criminal and certain financial matters.