There may be situations where a kinesiologist’s ability to practise is impaired by a physical or mental condition that poses a risk to the public because the quality of care may be compromised. This is referred to as “incapacity”. Under the Regulated Health Professions Act, 1991
, the College is required to address these matters by obtaining information about a kinesiologist’s health. In some instances, it may be necessary for the College to restrict or suspend a kinesiologist’s practice until such time that they no longer pose a risk of harm to the public. The Fitness to Practise Committee is responsible for determining whether a kinesiologist is incapacitated and it can impose limitations or suspend certificates of registration.
Incapacity proceedings differ significantly from disciplinary proceedings. Incapacity hearings focus on whether the kinesiologist is ill and as a result may compromise care. Incapacity proceedings do not focus on wrongdoing. A finding of incapacity usually results in rehabilitative, rather than punitive, measures designed to protect the public.
Initiating incapacity proceedings
Anyone who is concerned that a kinesiologist may be incapacitated can inform the College. If a panel of the Inquiries, Complaints and Reports Committee (ICRC) or the registrar believes that a kinesiologist may be incapacitated, an investigation is conducted and reviewed by a different panel of the ICRC, which receives specialized training for these matters. If after examining all information obtained through the investigation and any response received by the kinesiologist the panel believes that the kinesiologist may be incapacitated, they will refer the matter to the Fitness to Practise Committee for a hearing.
ICRC panel’s investigation
A panel consisting of no less than three members of the ICRC, including one public member, is selected by the chair of the ICRC to review the matter. The panel cannot determine whether the kinesiologist is incapacitated – this is the role of the Fitness to Practise Committee. The panel may obtain a specialist report, medical or hospital charts and other relevant health information; request information from the kinesiologist; and take statements from employers, colleagues, witnesses and/or patients/clients.
A panel may also require the kinesiologist to undergo a physical or mental examination if they have reason to believe the kinesiologist is incapacitated. A kinesiologist who refuses to be examined may have their certificate of registration suspended until they comply. Once the panel has finished its investigation, the kinesiologist will receive a copy of all the information, which may include any medical or psychological evidence. The kinesiologist will then be provided with an opportunity to submit a written response, which will be considered by the panel before it makes its decision.
The panel will consider all of the information obtained during the investigation and determine what action, if any, should be taken. They may decide to refer the matter to the Fitness to Practise Committee for a hearing. Before any such a referral, the panel will often seek an informal resolution with the kinesiologist's consent. A negotiated agreement avoids a formal hearing, while ensuring public protection. Possible negotiated agreements could include:
- requiring the kinesiologist to participate in a treatment program;
- obtaining reports from the treatment program and/or treatment providers; and/or
- monitoring of on-the-job performance.
If the panel believes that a kinesiologist's illness is exposing or is likely to expose patients/clients to harm or injury, it may direct the registrar to suspend or impose terms, conditions and/or limitations on the kinesiologist’s certificate of registration, pending the outcome of a hearing. In such cases, unless urgent action is required, the kinesiologist must first be given notice of this and the opportunity to respond. Once the order is in effect, the onus is on the College to address the case as quickly as possible.
Fitness to Practise hearings
The Fitness to Practise Committee is responsible for holding hearings to determine the capacity or "fitness" of a kinesiologist to practise. The burden of proving that a kinesiologist is incapacitated rests with the College.
Hearings are conducted by panels composed of at least three members of the Fitness to Practise Committee, one of whom must be a public member.
The Fitness to Practise Committee relies on information collected by the ICRC, including medical reports and/or examinations conducted by a qualified health professional, to make its determination. In addition, and unlike the panel of the ICRC, a panel of the Fitness to Practise Committee may also hear testimony by medical experts and/or any other witnesses, including the kinesiologist. A kinesiologist has the right to representation at the hearing.
Fitness to Practise hearings operate in much the same as disciplinary hearings, with some changes to reflect that it is not a punitive process. For example, a Fitness to Practise hearing will only be open to the public if the kinesiologist requests the registrar to do so.
If a kinesiologist is found to be incapacitated, the Fitness to Practise panel may:
- revoke the kinesiologist's registration;
- suspend the kinesiologist's registration (generally until the kinesiologist has demonstrated to the College that they have recovered);
- impose terms, conditions or limitations on the kinesiologist's registration for a specified or indefinite period of time.
The panel may also specify criteria that must be satisfied for the removal of terms, conditions or limitations, or for the suspension to be lifted.
Results of the hearing
The public is entitled to know the results of all proceedings in which a kinesiologist is found to be incapacitated. This information is made available on the Public Register of Kinesiologists.
Appeals, changes and reinstatement
A kinesiologist, or the College, may appeal a decision of the Fitness to Practise Committee to the Divisional Court of Ontario. An order or decision made by a panel of the Fitness to Practise Committee will take effect immediately, even if it is appealed. The kinesiologist or the College may return to the Fitness to Practise Committee to ask it to change any terms, conditions or limitations imposed where the kinesiologist’s circumstances have changed. Finally, a kinesiologist whose certificate of registration was suspended or revoked can ask the Fitness to Practise Committee for reinstatement after one year.
While it may be necessary to contact an employer during the course of an investigation, the College is not permitted to give the employer any of the details of the investigation, including medical reports or other evidence used to establish the existence, nature and extent of a kinesiologist's incapacity. The College and the kinesiologist are not permitted to share information about the details of the hearing. However, an employer will almost always be aware of any terms or conditions that involve the kinesiologist's conduct in the workplace (e.g. through mentor visits, requirements for performance reports, etc.).