BILL 29 - An Act Respecting the New Brunswick College of Dental Hygienists

BILL 29

An Act Respecting the New Brunswick College of Dental Hygienists

WHEREAS the New Brunswick Dental Hygienists Association Inc. prays that it be enacted as hereinafter set forth;

AND WHEREAS it is desirable in the interests of the public and dental hygienists to incorporate a body corporate called the New Brunswick College of Dental Hygienists for the purposes of advancing and maintaining the standard of dental hygiene in the Province, and of governing and regulating the profession of dental hygiene;

THEREFORE Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 This Act may be cited as the New Brunswick Dental Hygienists Act.

2 The following definitions apply in this Act.

"applicant" means a person applying for admission to membership in the College or reinstatement in the College. (postulant)

"College" means the New Brunswick College of Dental Hygienists continued under section 3. (Ordre)

"Council" means the Council of the College. (Conseil)

"Court" means The Court of Queen's Bench of New Brunswick. (Cour)

"dentist" means a person duly qualified and licensed to practice dentistry in a province or territory of Canada. (dentiste)

"document" means any record containing information whether in legible, visible or audible form, or stored electronically, including

(a) files, papers, books, accounting records, banking records, prescriptions, photographs, plans, charts, prints, drawings, films, tapes, video cassettes, diskettes, word processing software and other machine readable records regardless of physical form or characteristics, and

(b) any part of a document. (document)

"health professional" means a person who provides a service related to

(a) the preservation or improvement of the health of individuals, or

(b) the diagnosis, treatment or care of individuals who are injured, sick, disabled or infirm, and who is regulated under a private Act of the Legislature with respect to the provision of the service and includes a social worker registered under the New Brunswick Association of Social Workers Act, 1988. (professionnel de la santé)

"member" means, unless otherwise indicated, a licensed dental hygienist holding a valid licence issued under section 30 and registered under Part VII and, for the purpose of Parts IX and X, includes

(a) a former member, and

(b) a member of the profession of dental hygiene of another Canadian province or territory authorized to practice dental hygiene in New Brunswick under subsection 26(2). (membre)

"Minister" means the Minister of Health of New Brunswick, or his or her successor. (ministre)

"practice of dental hygiene" means the application of professional knowledge for the purpose of providing therapeutic, preventive and maintenance services and programs for the promotion of optimal oral health, including detection and assessment for dental hygiene treatment, the dental hygiene planning of interventions to prevent oral disease and the evaluation of oral health practices and behaviours as taught or included in the curriculum of an approved dental hygiene program or an approved dental hygiene module. (exercer ou exercer la profession d'hygiéniste dentaire)

"Registrar" means the person appointed as Registrar under section 18. (secrétaire général)

"Rules" means the Rules enacted under this Act. (Règles)

"special assessment" means fees imposed by Council other than annual fees, fees for licensing, examinations and continuing education, penalties for late payment, and fines, as requisite for the purposes of the College. (cotisations spéciales)

"suspension" means temporary disqualification from the practice of dental hygiene. (suspension)

PART I

COLLEGE

Incorporation

3(1) The New Brunswick College of Dental Hygienists is incorporated as a body corporate and, subject to this Act, has the capacity and powers of a natural person.

3(2) The head office of the College shall be in New Brunswick at a location determined by Council.

Official languages

4(1) English and French are the official languages of the College.

4(2) Services shall be provided to members and to the public in both official languages.

4(3) Members and the public may use one or both official languages at any meeting of the College, including meetings of Council and all committees.

PART II

OBJECTS

5(1) The objects and duties of the College are to:

(a) ensure that for the safety of the public, all persons engaged in the practice of dental hygiene within the Province should be acquainted with the processes of the profession and possess a competent practical knowledge of dental hygiene;

(b) ensure that the profession of dental hygiene is practised by its members in accordance with standards set by the College;

(d) maintain and develop standards of practice for members;

(e) establish, maintain and develop standards of professional ethics for its members;

(f) administer this Act and perform such other duties and exercise such other powers as are imposed or conferred on the College by or under any Act;

(g) uphold and protect the public interest in the practice of dental hygiene;

(h) ensure the independence, integrity and honor of its members;

(i) establish and maintain standards for the education, knowledge, qualifications, professional responsibility and competence of its members and applicants for membership; and

(j) subject to paragraphs (a) to (i), uphold and protect the interests of its members.

5(2) In addition to any other power conferred by this or any other Act, the College may do such things as it considers appropriate to advance the purposes of the College, and in particular, but not so as to limit the foregoing, the College may acquire and hold real and personal property and may alienate, mortgage, lease, charge or dispose of the same or any part thereof.

PART III

COUNCIL

Council

6 The College shall be governed by a Council consisting of Councillors who shall be:

(a) members elected under sections 7 and 13, being not fewer than 6 and not more than 24;

(b) a Treasurer, if one is appointed, pursuant to subsection 13(4);

(d) if continuing to be a member, the immediate Past-President;

(e) one member appointed by the Minister; and

(f) persons appointed under subsection 9(1) and section 10.

Elected Councillors

7(1) Members shall be elected to Council in the manner provided for in the Rules.

7(2) Elections for Council shall be held on the date fixed by Council.

7(3) The term of office of an elected member of Council is for 2 years commencing the day after the election.

7(4) To be eligible for nomination as an elected member of Council, the candidate shall be a member in good standing and, if an incumbent, not have been elected in more than 2 immediately preceding elections.

Elections

8 At an election of a member to Council or the President or Vice-President

(a) only members may vote,

(b) the vote shall be by secret ballot,

(c) the right of each member to vote shall carry the same weight as the right of any other member who is entitled to vote, and

(d) a member who is not in good standing has no right to vote.

Vacancies

9(1) Where a member elected to Council ceases to hold office before the expiration of that member's term, Council may appoint an eligible member to fill the vacancy.

9(2) A Councillor appointed under subsection (1) shall hold office for the remainder of the term of the member of Council who is replaced.

Failure to elect

10 If an election fails to elect the required number of members to Council, the other Councillors may appoint an eligible member to be on Council, and a member so appointed holds office on Council as though elected at the election.

Lay persons on Council

11(1) The Minister may appoint not more than 3 persons to Council, who:

(a) are residents of New Brunswick;

(b) are not and never have been members; and

11(2) The term of persons appointed to Council by the Minister shall be 2 years, coinciding with the term of a member on Council elected under section 7.

11(3) Persons appointed to Council by the Minister shall not hold the position of President, Vice-President or Treasurer.

11(4) Where a person appointed to Council by the Minister ceases to hold office, the Minister may appoint a replacement to hold office for the remainder of the term of the person being replaced.

Ceasing to be a Councillor

12(1) In this section, "bankruptcy proceedings" means

(a) an assignment of property for the general benefit of creditors under section 49 of the Bankruptcy and Insolvency Act (Canada), or its successors,

(b) the filing in a court of a petition for a receiving order under section 43 of the Bankruptcy and Insolvency Act (Canada), or its successors,

(d) an application for a consolidation order under section 219 of the Bankruptcy and Insolvency Act (Canada), or its successors.

12(2) A person elected or appointed to Council ceases to hold office if the person

(a) is convicted of an offence proceeded with by way of indictment,

(b) is the subject of bankruptcy proceedings,

(d) is required under this Act or the Rules to be a member in good standing at the time of election, and ceases to be a member in good standing.

12(3) Council may, by resolution, declare that a person on Council who has failed to attend 3 consecutive Council meetings has ceased to be on Council, and shall fill the vacancy as provided in this Act.

12(4) Where a declaration under subsection (3) is with respect to a person appointed under section 11, the Minister shall appoint a replacement under subsection 11(4).

President, Vice-President and Treasurer

13(1) In each year, members in good standing shall elect, in accordance with the Rules, a President and a Vice-President who shall hold office for one year, commencing on the day following the day of the annual general meeting in that year.

13(2) Any member in good standing may nominate any other member in good standing, for election as President or Vice-President.

13(3) Where the President or Vice-President does not take office or a vacancy occurs in one of those offices after that person has taken office, Council shall appoint a member in good standing to fill the vacancy.

13(4) In each year Council may appoint, in accordance with the Rules, a Treasurer who shall hold office for one year.

13(5) The Treasurer need not be a member, and will serve at the pleasure of Council.

13(6) Where a person assumes the office of President, Vice-President or Treasurer by operation of subsection (3), that person's term of office expires on the day following the day of the next annual general meeting.

Removal of President or Vice-President

14(1) Any 5 Councillors may seek the removal from office of the President or Vice-President by delivering to the Registrar a notice in writing stating the reason for the proposed removal.

14(2) The Registrar shall, upon receipt of a notice under subsection (1), deliver a copy of the notice to the President or Vice-President affected.

14(3) Council may, after being satisfied that reasonable notice has been given under subsection (2), and by the vote of two-thirds of those Councillors present and eligible to vote on the matter, remove the President or Vice-President from office.

14(4) A President or Vice-President who is removed under subsection (3) may, within 30 days of being removed, request in writing that Council convene a special general meeting of the College.

14(5) The members at a special general meeting convened in response to a request made under subsection (4) may, by a two-thirds vote of those present and eligible to vote, restore the President or Vice-President to office.

14(6) Subject to subsection (5), a President or Vice-President who is removed from office under subsection (3) ceases to be a Councillor.

PART IV

POWERS OF COUNCIL

15(1) Council shall govern and administer the affairs of the College and may exercise all of the powers attributed to it in this Act.

15(2) Without limiting the generality of the foregoing, Council may

(a) establish and determine the powers and duties of committees, and make and terminate appointments and fill vacancies on committees,

(b) require that the Chair or that one or more members of committees established under the Act be Councillors,

(d) fix fees and set annual and special assessment fees, to be paid by applicants and members, and fees for licensing, examinations and continuing education, including penalties for late payment, and such other fees and fines as may be requisite for the purposes of the College,

(e) use the fees, assessments and any other funds of the College, including funds previously collected or designated for a special purpose before the commencement of this Act, for the purposes of the College, including for

(i) pension schemes for the College's employees,

(ii) scholarships, bursaries and loans to persons engaged in a program of dental hygiene education,

(iii) the making of grants for any purpose that may tend to advance scientific knowledge or dental hygiene education, or to maintain or improve the standards of practice in dental hygiene, or to support and encourage public information and interest in the past and present role of dental hygiene in society,

(f) require members to maintain insurance that provides indemnity against professional liability claims,

(g) obtain insurance protecting the College, persons on Council and on committees, and officers and employees of the College, past and present, against liability arising out of the operations or activities of the College and providing for indemnity with respect to any claims arising out of any acts done or not done by any person in good faith under the provisions of this Act or the Rules,

(h) establish a system of compulsory continuing education and require that every member, unless exempted in writing by the Registrar in accordance with the Rules, attend and successfully complete a course of study approved by Council as a condition of the right to practice dental hygiene,

(i) authorize the College to act as agent for other organizations for the purpose of collecting fees from members,

(j) maintain a professional conduct record for members and former members of the College and persons referred to in subsection 26(2),

(k) approve Standards of Practice and a Code of Ethics and require members, applicants for membership and persons referred to in subsection 26(2) to comply,

(l) require a member whose documents are inspected under sections 66 or 67 to pay part or all the inspection costs occasioned by a member who has not complied with the College's standards as established under paragraphs 19(2)(e), (f), (g), (h) and (j),

(m) take any action it considers necessary for the promotion, protection, interest or welfare of the College and its members, and

(n) approve forms to be used for the purposes of this Act.

15(3) Subject to the Rules of the College, the Council has the sole control and management of the property of the College, including real property being acquired, alienated, mortgaged, charged, or disposed of, but no real property shall be acquired, alienated, mortgaged, charged, or disposed of, without the previous authorization of a majority vote at an annual or special meeting of the College.

15(4) Council's exercise of power under paragraphs (2)(h) and (k) shall not be effective or be acted upon until approved by the Minister.

Committees

16 Council shall establish and appoint as here provided the following committees:

(a) the Complaints Committee, and

(b) the Discipline Committee.

Executive Committee

17(1) There shall be an Executive Committee of Council consisting of the President, Vice-President and Past-President.

17(2) Subject to the Rules of the College and direction of Council, the Executive Committee shall manage and administer the day-to-day affairs of the College.

17(3) The President shall be the Chair of the Executive Committee.

17(4) A majority of the members of the Executive Committee constitutes a quorum.

17(5) The Executive Committee shall consider and take action upon all matters delegated to it by the Council and all matters which require attention between meetings of Council.

17(6) In taking action pursuant to subsection (5) the Executive Committee may exercise all the powers of the Council subject to any restrictions imposed by resolution of the Council or by the Rules.

17(7) All acts of the Executive Committee shall, if within the scope of its authority, be effective as the acts of the Council, unless and until amended or rescinded by the Council.

Registrar

18(1) Council shall appoint a Registrar who shall have powers and duties incidental to the position assigned under this Act, under the Rules and by Council, and Council may appoint an Acting Registrar.

18(2) Council may, or may authorize the Registrar to, employ or retain persons to assist the Registrar and to assist committees in carrying out the responsibilities of the College, including inspectors.

PART V

RULES OF THE COLLEGE

19(1) Council may enact and amend Rules for governing the College, its members, former members and persons referred to in subsection 26(2) and for otherwise carrying out its responsibilities under section 15 or as provided elsewhere in this Act.

19(2) Without limiting the generality of the foregoing, the Rules may:

(a) provide for the exercise by Council of the powers in subsection 15(2);

(b) provide for giving notice and the practice and procedure respecting annual and special general meetings of the College and meetings of Council, the Executive Committee, the Complaints Committee, the Discipline Committee and any other committees and panels established under this Act;

(c) for the purposes of proceedings under paragraph (b), provide that 2 or more locations may be joined by telephone or by any other means of communication that permits all persons participating in the meeting to communicate with each other, and provide that a person participating in such a meeting is, for the purposes of this Act, present at the meeting and eligible to vote;

(d) subject to section 4, regulate the use of the official languages within the College;

(e) set standards of competence that Council considers necessary or advisable to ensure that members have adequate skill and knowledge;

(f) establish standards for the maintenance of documents of a member;

(g) for the purpose of ascertaining whether the standards established under paragraph (e) have been or are being met, provide for the inspection of documents relating to the practice of a member or former member by the College, or its agents, and for answering questions put to members and former members;

(h) require and prescribe the documents to be maintained by members;

(i) provide for the inspection of the practice of members whether or not a complaint has been received, or received and withdrawn, and whether or not it appears there has been conduct deserving sanction;

(j) require any member whose practice is being inspected to produce to the inspector all documents, patients' files and such explanations or evidence as the inspector may require for the audit or investigation;

(k) require members to provide information and documents to the College, and to file reports with the College;

(l) provide for payment to the College by any member of the cost of any investigation of the member's practice;

(m) provide for the fines that can be imposed by the Complaints Committee and by the Discipline Committee;

(n) delegate to the Registrar, Acting Registrar, Administrator, Chair or Vice-Chair of the Complaints Committee or any other member, the authority to require an inspection of the practice of a member or former member;

(o) provide for the handling of complaints about the conduct or competence of members, former members and persons referred to in subsection 26(2);

(p) specify the conditions under which

(i) a member of the profession of dental hygiene of another Canadian province or territory may practice dental hygiene in New Brunswick, and

(ii) a person who is qualified to practice dental hygiene in a country other than Canada or in an internal jurisdiction of that country may practice in New Brunswick;

(q) subject to Part III, regulate the election of members of Council;

(r) subject to sections 8 and 13, regulate the election of the President and Vice-President;

(s) establish the proportion of the Discipline Committee acting under section 57 that must vote in favour of expulsion or suspension for the motion to carry;

(t) establish procedures to prevent the disclosure of any confidential information or information that, but for the provisions of this Act, would be subject to patient privilege, which procedures may be made applicable to any person who, in the course of any proceeding under this Act, would become privy to the confidential or privileged information;

(u) designate the seal of the College;

(v) provide for the execution of documents by the College;

(w) provide for banking and finance;

(x) fix the financial year of the College and provide for the audit of the accounts and transactions of the College;

(y) prescribe the remuneration and payment of necessary expenses of the members of the Council and committees;

(z) provide for a code of ethics;

(aa) provide for the application of the funds of the College and the investment and reinvestment of any of its funds not immediately required, and for the safekeeping of its securities;

(bb) oblige membership of the College in national organizations with similar functions, the payment of an annual assessment and provision for representatives at meetings;

(cc) provide for the advertising of professional services and of advertising by members;

(dd) define professional misconduct;

(ee) require as a condition of continued registration the payment of fees and the maintenance of membership in specified associations of dental hygienists;

(ff) provide for the registration of persons as honorary or life members and provide for their rights and privileges;

(gg) establish the criteria whereby a graduate of a dental hygiene program which is not yet accredited but is actively seeking accreditation by the Commission on Dental Accreditation of Canada may be admitted as a member;

(hh) provide for compulsory education programs; and

(ii) provide for any other matter requisite for carrying out the objects of this Act.

19(3) The Registrar shall:

(a) provide to each member and applicant a copy of all Rules made by Council; and

(b) make a copy of all Rules made by Council available for inspection, and for copying at a reasonable cost, by members of the public at the College's office during regular office hours.

19(4) The Rules are binding on the College, its members and former members, Council, applicants and persons referred to in subsection 26(2).

19(5) A new Rule or the amendment or repeal of a Rule is not effective unless a majority of the Council then in office vote in favour of it, and it comes into force upon approval by Council or such later date as provided in the Rule.

19(6) The Regulations Act does not apply to Rules passed by Council under this Act.

19(7) A Rule or the amendment or repeal of a Rule respecting eligibility for registration (curriculum of education, training requirements and professional examinations), continuing education, standards of practice or conflicts of interest does not come into force until approved by the Minister.

PART VI

MEETINGS

Annual general meeting

20(1) An annual general meeting of the members of the College shall be held each year at a time and place designated by Council.

20(2) The Registrar shall mail a notice of the annual general meeting to each member at least 21 days before the meeting is to be held.

20(3) The accidental omission to give notice of the annual general meeting to any member or the non-receipt of the notice by any member does not invalidate anything done at the meeting.

20(4) Council shall, at the annual general meeting, report on its proceedings since the previous annual general meeting.

Auditors

21(1) At each annual general meeting the members shall appoint an auditor.

21(2) Council may, by resolution delivered to the auditor not less than 10 days before a general meeting at which the financial statements of the College are to be considered or the auditor is to be appointed or removed, require the attendance of the auditor at the meeting at the expense of the College, and the auditor shall attend the meeting.

21(3) At any general meeting the auditor, if present, shall answer enquiries concerning the financial statements of the College and the auditor's opinion of the statements as set out in the auditor's report.

21(4) The auditor shall at all times have access to every document of the College and is entitled to require from Council, officers and employees of the College information and explanations that the auditor considers necessary to enable the preparation of the auditor's report.

Special general meeting

22(1) Council may at any time convene a special general meeting of the College.

22(2) Council shall convene a special general meeting of the College on the written request of the President or Vice-President under subsection 14(4), or on the written request of at least 10 members of the College.

22(3) A written request referred to in subsection (2) shall

(a) be delivered to the Registrar, and

(b) state the nature of the business proposed to be considered at the meeting.

22(4) A special general meeting convened under subsection (2) shall be held within 30 days after the receipt of the request.

22(5) A special general meeting shall be held in New Brunswick at a place and, subject to subsection (4), at a time fixed by Council.

22(6) The Registrar shall mail to each member, at least 21 days before the special general meeting is to be held, a notice of the meeting stating the business that will be considered at the meeting.

22(7) The accidental omission to give notice of the meeting to any member or the non-receipt of the notice by any member does not invalidate anything done at the meeting.

22(8) No business other than the business stated in the notice under subsection (6) shall be considered at a special general meeting.

Quorum

23 At a general meeting or a special general meeting of the College, 15 members in good standing constitute a quorum.

Meetings of Council

24(1) The President or any 5 or more Councillors may, in accordance with the Rules, call a special meeting of Council.

24(2) At a meeting of Council, a majority of the Councillors then in office constitute a quorum.

24(3) Council may pass a resolution without convening a regular meeting if

(a) a copy of the resolution is delivered to all Councillors at least 2 days before the resolution is to be voted on, and

(b) at least 75% of the Councillors eligible to vote on the resolution vote in favour of it.

24(4) Delivery to a Councillor of a resolution under paragraph (3)(a) and voting on a resolution by a Councillor under paragraph (3)(b) may be done by facsimile transmission or any method allowed by the Rules.

PART VII

MEMBERSHIP IN THE COLLEGE

25(1) The membership of the College shall consist of

(a) honourary members,

(b) life members, and

25(2) Honourary members are appointed in recognition of outstanding service in or for dental hygiene, in accordance with the Rules.

25(3) Honourary members shall have such rights and privileges as are provided for in the Rules.

25(4) Any member who is registered as a life member in accordance with the Rules shall have the rights and privileges as are provided by the Rules, without payment of annual dues.

Admission to membership

26(1) Subject to the other provisions of this Act, the Registrar shall admit as a member any person who

(a) is a former member who, since resigning, has continuously been a member of another dental hygiene regulatory body, and

(b) has paid the fees fixed by Council;

or a person who

(d) has received a diploma in dental hygiene from any school accredited by the Commission on Dental Accreditation of Canada, or as provided in the Rules,

(e) has sufficient ability to speak, read and write at least one of the official languages of New Brunswick as to be competent to discharge the duties and obligations of a dental hygienist,

(f) has Canadian citizenship or is a resident of Canada,

(g) holds a certificate from the National Dental Hygiene Certification Board,

(h) has complied with any other requirements for admission to membership as established in the Rules, and

(i) has paid the fees fixed by Council.

26(2) The Registrar shall admit as a member a practitioner of the profession of dental hygiene of another Canadian province or territory who

(a) has complied with any requirements imposed on the applicant under subsection (1),

(b) has met the academic requirements for admission of members,

(d) has produced any documents and disclosed any information required by the Registrar or Council and has met all other requirements imposed by the Registrar or Council, and

(e) is not currently under suspension by, and has never been expelled from, another dental hygiene regulatory authority.

26(3) The Registrar may postpone consideration of an application for admission under this section pending final disposition of an outstanding criminal charge against an applicant.

26(4) The Registrar may:

(a) impose conditions and limitations on a person being admitted as a member or transferring from one register to another register;

(b) grant conditional licences; and

(c) vary or remove conditions and limitations.

Reinstatement

27(1) Council may reinstate as a member a former member who has been suspended or expelled if it is satisfied that the former member

(a) has complied with all orders of a court and all orders or directions of the Discipline Committee or Council,

(b) has been fully rehabilitated and is no longer a threat to the public by practicing dental hygiene, and

(i) the fees fixed by Council, and

(ii) any fees, assessments or costs in respect of which the applicant is in arrears, except to the extent that the amount owing is waived by Council.

27(2) Council may postpone consideration of an application for reinstatement under this section pending final disposition of an outstanding criminal charge against an applicant.

27(3) Council may impose conditions and limitations on a person being reinstated as a member and may vary or remove them.

27(4) A dental hygienist who has ceased to be a licensed dental hygienist for a period exceeding 12 months in any jurisdiction is not entitled to become a member unless he or she

(a) makes application therefor;

(b) pays the current annual fee and any arrears owing;

(c) is a fit and proper person to be so licensed;

(d) furnishes to the Registrar satisfactory evidence of possession of the requisite knowledge to practice as a licensed dental hygienist; and

(e) if required by the Registrar, takes such refresher course as may be prescribed.

Appeals

28(1) All decisions made by the Registrar under this Part may be appealed to Council.

28(2) Upon hearing an appeal, Council may either

(a) reject the appeal,

(b) vary the Registrar's decision, or

28(3) Any person whose application for registration under this Act has been refused by Council may appeal to the Court and the provisions of section 62 shall apply.

Fees and licences

29(1) Subject to subsection (7), every member shall pay to the College each year a fee consisting of annual dues in an amount fixed by Council, plus applicable taxes.

29(2) All fees are payable on or before the date fixed by Council or, where Council permits payment by instalments, on or before the date by which each instalment is due.

29(3) On payment of the applicable annual fee, if the member is otherwise in good standing and has complied with this Act and the Rules, the Registrar shall register the person as a member, in the appropriate register, for the year for which the fee is payable.

29(4) A member who fails to pay the applicable annual fee or any special assessment by the date it is due is in arrears and shall not, from that date, practice dental hygiene until the member pays

(a) the amount owing, and

(b) a late payment fee in an amount fixed by Council.

29(5) A member who fails to pay the amount owing and the late payment fee referred to in subsection (4) ceases to be a member 15 days after the due date, unless Council otherwise directs.

29(6) Every applicant and member shall, on or before the date set by Council, pay to the College any special assessments set by Council under paragraph 15(2)(d).

29(7) Council may waive payment of all or part of an annual fee or a special assessment for a member whom they wish to honor.

30(1) A certificate, purporting to contain the signature of the Registrar, stating a member's standing in the College at the time specified in the certificate, shall in the absence of evidence to the contrary be proof of that standing.

30(2) Every person entitled to be registered as a member shall, upon payment of the prescribed fee, receive a license under the seal of the College in such form as may be prescribed by the Council.

31(1) A member who is suspended from the practice of dental hygiene under this Act

(a) is not entitled to a refund of any part of the applicable annual fee for the period of the suspension or any special assessment that the member has paid, and

(b) shall pay the applicable annual fee or special assessment when it is due.

31(2) A person who is expelled under this Act is not entitled to a refund of any part of the applicable annual fee or any special assessment paid before the expulsion.

31(3) A member who is suspended or who is in arrears respecting the payment of any money owing to the College is not in good standing.

Continuing education

32(1) Members shall complete such mandatory continuing education programs as prescribed by the Rules as a condition of maintaining membership in the College.

32(2) A person who has not maintained membership for the last 12 months may be required to meet such other requirements as prescribed by the Rules before being registered as a member.

PART VIII

RIGHT TO PRACTICE

Register

33(1) A register shall be made and kept of all persons registered under this Act, showing:

(a) name,

(b) date of registration,

(d) classification or category of membership,

(e) current home and business address,

(f) change of status,

(g) current suspension or revocation,

(h) the results, including findings and penalty imposed, of disciplinary proceedings where a member's licence or registration was suspended or revoked, or where the Discipline Committee directed the information be made available to the public, and

(i) such other information as may be directed by the Council.

33(2) Registers shall also be kept for each year listing all dental hygienists holding valid licences.

33(3) The production in any court or proceeding of a register or a copy thereof or an extract therefrom, certified under the hand of the Registrar or Acting Registrar under the seal of the College is prima facie evidence of the statements therein, without proof of the official character or handwriting of such officer or of the seal.

33(4) The Registrar shall forthwith enter into a register of the College

(a) the result of every proceeding before the Discipline Committee that

(i) resulted in the suspension or revocation of a licence, or

(ii) resulted in a direction under paragraph 57(1)(p), and

(b) where the findings or order of the Discipline Committee that resulted in the suspension or revocation of a licence or the direction are appealed, a notation that they are under appeal.

33(5) Where an appeal of the findings or order of the Discipline Committee is finally disposed of, the notation referred to in paragraph (4)(b) shall be removed and the records adjusted accordingly.

33(6) For the purpose of paragraph (4)(a), "result", when used in reference to a proceeding before the Discipline Committee, means the committee's findings and the penalty imposed, and in the case of a finding of professional misconduct, a brief description of the nature of the misconduct.

33(7) The Registrar, upon receipt of a fee set by Council, shall provide to a person upon request

(a) a copy of the information contained in the records referred to in subsection (1) that pertain to a member or former member, or

(b) a written statement of the information contained in the records in place of a copy.

33(8) The Registrar shall provide the information contained in the records pursuant to paragraph (1)(g):

(a) for an indefinite period if the member or former member was found to have sexually abused a patient, and

(b) for a period of 5 years following the conclusion of the proceedings referred to in subsection (4) in all other cases.

Authority to practice dental hygiene

34(1) Subject to subsections (2) and (3), no person except a member in good standing shall practice dental hygiene.

34(2) Nothing in this Act shall be construed to prohibit the practice of dentistry or of an occupation or profession authorized or licensed under any statute of the Legislature or regulation made under any such statute in force in the Province.

34(3) Nothing in this Act requires that a person permitted to provide a service described in subsection (2) be a member of the College or be otherwise licensed under this Act.

Assisting unauthorized practice

35(1) No member shall knowingly act as the agent of a person, other than a person referred to in subsection 34(1), who is not a member in good standing so as to enable that person to practice dental hygiene.

Holding out

35(2) Unless qualified to practice dental hygiene under section 26, no person shall

(a) use any title, name or description with the intent of representing to the public that the person is qualified to practice dental hygiene in New Brunswick, or

(b) offer to do, or represent that the person is qualified or entitled to do, anything referred to in the definition "practice of dental hygiene" in section 2.

35(3) No person other than a member shall

(a) assume, or use, the titles "dental hygienist", "registered dental hygienist", "hygiéniste dentaire" or "hygiéniste dentaire immatriculée", or any other title or an abbreviation of those words alone or in combination with any other word,

(b) use the initials "D.H.", "R.D.H.", "H.D." or "H.D.I" or any other initials alone or in combination with any other word, letter, symbol, initial or abbreviation, except when designating a diploma or other qualification, or

(c) use, display, advertise or list any other title, sign or designation implying, or calculated to lead the public to infer, that the person is licensed under this Act.

PART IX

DISCIPLINE AND COMPETENCE

Interpretation

36(1) The following definitions apply in this Part.

"Administrator" means the Administrator of Complaints appointed by Council to carry out the responsibilities set out in this Part. (administrateur)

"conduct deserving sanction" includes

(a) professional misconduct,

(b) conduct unbecoming a member of the College,

(d) incompetence in the practice of dental hygiene, and

(e) any other matter that, in the opinion of the Complaints Committee or Discipline Committee, does not meet the prevailing standards of practice or conduct expected of a member in the practice of dental hygiene. (conduite répréhensible)

"Court of Appeal" means the New Brunswick Court of Appeal. (Cour d'appel)

"incapacitated" means, in relation to a member, that the member is suffering from a physical or mental condition or disorder, that makes it desirable in the interest of the public that the member no longer be permitted to practice or that the member's practice be restricted, and "incapacity" has a corresponding meaning. (incapable ou incapacité)

"incompetence", means, in relation to a member, that the member's professional care of a patient displays lack of knowledge, skill or judgment or disregard for the welfare of the patient of a nature or to an extent that demonstrates that the member is unfit to continue to practice or that the member's practice should be restricted. (incompétence)

"professional misconduct" means the member has

(a) pleaded guilty to or been found guilty of an offence that, in the opinion of the committee, is relevant to the member's suitability to practice or carry out professional responsibilities,

(b) been adjudged guilty of an act of professional misconduct by the governing body of a health profession in a jurisdiction other than New Brunswick that would, in the opinion of the committee, constitute professional misconduct under this Act or the Rules,

(d) committed an act of professional misconduct as defined in the Rules,

(e) violated or failed to comply with this Act or the Rules,

(f) violated or failed to comply with a condition or limitation imposed on the member's licence,

(g) failed to submit to an examination ordered by the Committee under subsection 42(1),

(h) sexually abused a patient, or

(i) failed to file a report pursuant to sections 37 or 38.

(faute professionnelle)

"Respondent" means a member, former member, applicant or any person whose conduct is being inquired into under this Act. (intimé)

36(2) Sexual abuse of a patient by a member means

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,

(b) touching, of a sexual nature, of the patient by the member, or

36(3) For the purposes of subsection (2), "sexual nature" does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.

Mandatory reporting of sexual abuse

37(1) A member who, in the course of practicing the profession, has reasonable grounds to believe that another health professional has sexually abused a patient or client and who fails to file a report in writing in accordance with subsection (4) with the governing body of the health professional within 21 days after the circumstances occur that give rise to the reasonable grounds for the belief commits an act of professional misconduct.

37(2) A member is not required to file a report pursuant to subsection (1) if the member does not know the name of the health professional who would be the subject of the report.

37(3) If the reasonable grounds for filing a report pursuant to subsection (1) have been obtained from one of the member's patients, the member shall use his or her best efforts to advise the patient that the member is filing the report before doing so.

37(4) A report filed pursuant to subsection (1) shall contain the following information:

(a) the name of the member filing the report;

(b) the name of the health professional who is the subject of the report;

(d) subject to subsection (5), if the grounds of the person filing the report are related to a particular patient or client of the health professional who is the subject of the report, the name of the patient or client.

37(5) The name of the patient or client who may have been sexually abused shall not be included in a report unless the patient or client, or if the patient or client is incapable, the patient's or client's representative, consents in writing to the inclusion of the patient's or client's name.

37(6) Subsection 36(2) applies with the necessary modifications to sexual abuse of a patient or client by another health professional.

37(7) No action or other proceeding shall be instituted against a member for filing a report in good faith pursuant to subsection (1).

Other mandatory reports

38(1) A person who terminates or suspends the employment of a member or who imposes restrictions on the practice of a member for reasons of professional misconduct, incompetence or incapacity shall file with the Registrar within 30 days after the termination, suspension or imposition a written report setting out the reasons.

38(2) If a person intended to terminate or suspend the employment of a member or to impose restrictions on the practice of a member for reasons of professional misconduct, incompetence or incapacity but did not do so because the member resigned, the person shall file with the Registrar within 30 days after the resignation a written report setting out the reasons upon which the person has intended to act.

38(3) This section applies to every person, other than a patient, who employs a member.

38(4) A member who dissolves a partnership or association with another member for reasons of professional misconduct, incompetence or incapacity and who fails to file a written report with the Registrar within 30 days after the dissolution setting out the reasons for the dissolution commits an act of professional misconduct.

38(5) No action or other proceeding shall be instituted against a person for filing a report in good faith under this section.

Administrator of Complaints

39(1) Council shall appoint a member in good standing as Administrator of Complaints and may assign duties in addition to those set out in this Part.

39(2) The Registrar shall have all of the powers of the Administrator and shall act in the absence of the Administrator when the Administrator is unable or fails to act, or as directed by Council.

Functions of Administrator of Complaints

39(3) The Administrator shall

(a) conduct or provide for the conduct of investigations on behalf of the Discipline Committee and the Complaints Committee,

(b) provide for the prosecution of complaints before the Discipline Committee,

(d) prepare formal notices of complaint and notices of hearing in a form provided by the Rules for hearing by the Discipline Committee,

(e) ensure that all decisions of the Discipline Committee and the Complaints Committee are implemented and take whatever action is necessary to see that such is done, including referring the matter back to the appropriate committee or filing a further complaint in the event of conduct deserving sanction, and

(f) perform such other functions as required in carrying out the responsibilities of the Administrator or as directed by Council.

Complaints

40(1) A complaint against a Respondent shall

(a) be in writing, and

(b) be delivered to the Administrator.

40(2) Any person may file a complaint, including the Administrator when acting pursuant to subsection 41(4), or the Registrar in circumstances where no complaint has been received from any other person, and it is in the public interest that action be taken immediately.

40(3) Upon receipt of a complaint, or when acting under subsections 41(1) and (4), the Administrator shall

(a) if necessary, obtain additional information from the complainant and carry out an investigation, and

(b) provide the Respondent with

(i) a copy of the complaint, and

(ii) the date by which a reply must be filed with the Administrator, which date shall not be later than 21 days after the date when the Administrator mails or delivers the complaint.

40(4) Upon receipt of the Respondent's reply the Administrator may

(a) investigate the complaint further should circumstances require,

(b) refer the complaint to the Complaints Committee, or

(c) refer the complaint to the Discipline Committee if the subject matter is, in the opinion of the Administrator, sufficiently serious to warrant such referral.

40(5) When a complaint is referred to the Complaints Committee, the Administrator shall provide the Committee with a full report of the results of any investigation, the complaint, the Respondent's reply and any documentation and information relevant to the complaint.

40(6) When a complaint is referred to the Discipline Committee, the Administrator shall comply with paragraphs 39(3)(b), (c) and (d).

Investigation of complaints

41(1) The Administrator shall investigate all matters that may constitute conduct deserving sanction, notwithstanding that no complaint has been received under subsection 40(1), or the complaint has been withdrawn, and may carry out investigations on the request of any person or of Council.

41(2) A Respondent who is the subject of a complaint shall cooperate with the Administrator in the investigation, including the production of all documents and disclosure of all relevant information.

41(3) Failure to comply with subsection (2) constitutes professional misconduct.

41(4) If an investigation under subsection (1) discloses that a Respondent may deserve sanction, the Administrator shall cause a complaint to be filed with the Complaints Committee or refer the complaint directly to the Discipline Committee, as in subsection 40(4).

42(1) Where either the Complaints Committee or Discipline Committee has reasonable grounds to believe that a Respondent is incapacitated, the Committee may require the Respondent to submit to physical or mental examinations or both by one or more qualified persons selected by the Committee and, subject to subsection (3), may make an order directing the Registrar to suspend the Respondent's licence until the Respondent submits to the examinations.

42(2) No order for the examination of a Respondent shall be made by the Complaints Committee or Discipline Committee unless the Respondent has been given

(a) notice of the intention of the Committee to make the order, and

(b) at least 10 days to make written submissions to the Committee after receiving the notice.

42(3) A person who conducts an examination under this section shall prepare and sign an examination report containing his or her findings and the facts on which they were based and shall deliver the report to the Committee.

42(4) The Committee shall forthwith deliver a copy of the examination report to the Respondent.

42(5) A report prepared and signed by a person under subsection (3) is admissible as evidence at a hearing without proof of its making or of the person's signature if the party introducing the report gives the other party a copy of the report at least 10 days before the hearing.

42(6) The Complaints Committee, at any time after requiring a Respondent to submit to examinations under this section, may refer the matter of the Respondent's alleged incapacity to the Discipline Committee.

Complaints Committee

43(1) Council shall appoint a Complaints Committee consisting of:

(a) six members, 3 to be appointed for a term of one year and 3 for a term of 2 years, and subsequent appointments shall be for terms of 2 years, and

(b) two lay persons, one to be appointed for a term of one year and one for a term of 2 years, and subsequent appointments shall be for terms of 2 years.

43(2) Members of the Complaints Committee may be reappointed.

43(3) Council shall name from its appointments a Chair and one or more Vice-Chairs of the Complaints Committee.

43(4) The Complaints Committee shall sit in panels of three, which shall include one lay member, presided over by the Chair or a Vice-Chair, and decisions of a panel shall be by majority vote.

43(5) If the term of a member of a panel of the Complaints Committee expires before the panel concludes a matter before it, the member whose term has expired shall continue in office until the matter is concluded by the panel.

43(6) Subject to subsection (5), if a member of the Complaints Committee, including the Chair of the panel, is unable to continue to act for the completion of the matter before the Committee after the commencement of a hearing, and the Committee is left with a majority who have been present throughout the hearing, the Committee may complete the matter as if fully constituted.

Deliberation by Complaints Committee

44 When considering and deciding a complaint, the Complaints Committee is not required to conduct a hearing, but may interview the complainant and the Respondent to obtain information and explanations of the position of each, including the possibility of settling the complaint.

Actions by Complaints Committee

45(1) Upon referral of a complaint from the Administrator, or from the Discipline Committee, the Complaints Committee shall consider the complaint and may:

(a) make an order in writing in accordance with section 46,

(b) dismiss the complaint, in which case it shall give its reasons in writing to the complainant and the Respondent,

(d) refer the complaint to the Administrator for further investigation and action,

(e) refer the whole or part of the complaint to the Discipline Committee, or

(f) take such other action, consistent with its responsibilities under this Act and the Rules, as it considers necessary in the public interest, in which case it shall give its reasons in writing to the complainant and the Respondent.

45(2) Not later than 30 days after receipt of reasons under paragraphs (1)(a),(b) or (f), a complainant who considers that the Complaints Committee has failed to take any matter into account in reaching its decision, may request the Committee in writing to review its decision, in which case the Committee shall do so and advise the complainant in writing of its disposition of the review with reasons.

45(3) In making a decision under subsection (2) the Committee may take any action it could have taken when first making a decision under subsection (1).

Disposition of complaints

46(1) The Complaints Committee may do one or a combination of the following:

(a) settle the complaint to the satisfaction of the complainant in any manner available to the Administrator under paragraph 40(4)(a);

(b) require the member to waive, reduce or repay a fee for services provided by the member that, in the opinion of the Committee, were not provided or were improperly provided;

(d) order that the Respondent, within a fixed time, pay to the College a fine not to exceed an amount set by the Rules;

(e) order that the Respondent pay to the College within a fixed time in an amount decided by the Committee, costs of the investigation, including the cost of an investigation by the Administrator or the costs of an investigation under Part X; or

(f) impose conditions on the right of the Respondent to practice.

46(2) When the Complaints Committee finds that a Respondent has been incompetent in the practice of dental hygiene, it may do one or a combination of the following:

(a) order that the Respondent not engage in specific areas of practice and impose conditions and limitations on the right to practice;

(b) order that the Respondent undertake and pass courses of study at an approved dental hygiene school or in a continuing education program;

(c) impose specific restrictions on the right to practice, including requiring the Respondent

(i) to engage in the practice of dental hygiene only under the personal supervision and direction of another member or a dentist,

(ii) not to engage in the practice of dental hygiene alone,

(iii) to accept periodic inspections by the Committee or by its delegate of the Respondent's documents and work relating to the Respondent's practice, or

(iv) to report to the Administrator or to the Committee on such matters relating to the Respondent's practice, during such period, at such times and in such form as the Committee may specify.

47 In addition to the actions that may be taken under section 46, the Complaints Committee may find a Respondent incapacitated if, in its opinion, the Respondent is suffering from a physical or mental disability, including dependence on alcohol or drugs, of such a nature or extent as to render the Respondent unfit to engage in the practice of dental hygiene, and in reaching its opinion the Committee may require expert medical evidence.

Interim suspension

48(1) When the Complaints Committee refers a matter to the Discipline Committee, the Complaints Committee may, if it considers it probable that the continued practice of the Respondent will be harmful to the public or to the Respondent's patients, pending final disposition of the matter, make an order

(a) suspending the Respondent, or

(b) placing conditions on the practice of the Respondent.

48(2) No order shall be made by the Complaints Committee under subsection (1) unless the member has been given

(a) notice of the Committee's intention to make the order, and

(b) at least 10 days to make representation to the Committee in respect of the matter after receiving the notice.

48(3) Where the Committee takes action under subsection (1), the Committee shall notify the member of its decision in writing.

48(4) An order made under subsection (1) continues in force until the matter is disposed of by the Discipline Committee, unless the order is stayed pursuant to an application under subsection (5).

48(5) A member against whom action is taken under subsection (1) may apply to the Court for an order staying the action of the Council.

48(6) The Complaints Committee may, on the application of the Respondent and on cause being shown, rescind or vary an order made under subsection (1).

48(7) Where an order is made under subsection (1) in relation to a matter referred to the Discipline Committee, the College and the Discipline Committee shall act expeditiously in relation to the matter.

Delegation to Administrator of Complaints

49 The Complaints Committee may delegate to the Administrator such functions as it considers appropriate, if the delegation is not inconsistent with this Act or the Rules.

Discipline Committee

50(1) There shall be a Discipline Committee appointed by Council consisting of

(a) ten members, 5 to be appointed for a term of one year and 5 for a term of 2 years, and subsequent appointments shall be for terms of 2 years, and

(b) two lay persons, one to be appointed for a term of one year and one for a term of 2 years, and subsequent appointments shall be for terms of 2 years.

50(2) Members of the Discipline Committee may be reappointed.

50(3) Council shall name from its appointments a Chair and one or more Vice-Chairs of the Discipline Committee.

50(4) The Discipline Committee shall sit in panels of 5, which shall include one lay member, presided over by the Chair or a Vice-Chair, and decisions of a panel shall be by majority vote.

50(5) If the term of a member of a panel of the Discipline Committee expires before the panel concludes a matter before it, the member whose term has expired shall continue in office until the matter is concluded by the panel.

50(6) Subject to subsection (5), if a member of the Discipline Committee, including the Chair of the panel, is unable to continue to act for the completion of the matter before the Committee after the commencement of a hearing, and the Committee is left with a majority who have been present throughout the hearing, the Committee may complete the matter as if fully constituted.

50(7) The Discipline Committee shall

(a) hear and determine allegations of professional misconduct, incompetence or incapacity of a member referred to it from the Administrator, the Complaints Committee or the Council,

(b) hear and determine matters referred to it under Part IX, and

Notice of complaint and reply

51(1) If referring a complaint to the Discipline Committee, the Administrator shall, at the same time, prepare a notice of complaint and cause it to be served on

(a) the complainant,

(b) the Respondent, and

51(2) The Administrator shall set out in the notice of complaint the charges made against the Respondent that are being referred to the Discipline Committee.

52(1) A Respondent who has been served with a notice of complaint and who wishes to reply shall do so by filing with the Administrator, within 20 days after the date of service, a reply to the notice of complaint.

52(2) The Respondent shall, in the reply, admit any charges that are true, give an explanation of any charges that are not true and indicate the official language in which the Respondent wishes the hearing of the charges to be held.

52(3) Upon receipt of a notice of complaint the Chair or the Vice-Chair shall appoint a panel to hear the complaint, but may substitute or replace members at any time up to the commencement of the hearing.

Notice of hearing

53 Upon the filing of a reply in accordance with subsection 52(1) or, if no reply is filed, upon the expiration of the deadline established in that subsection, the Administrator shall prepare a notice of hearing, which shall be served at least 30 days before the date appointed for the hearing on

(a) the complainant,

(b) the Respondent, and

Hearing of complaint

54 On a hearing before a panel of the Discipline Committee

(a) the procedures to be followed are those of the Court in civil actions, with such modifications as the Committee may decide, including the giving of evidence under an oath or affirmation to be administered by any member of the panel;

(b) on the request of counsel to the College or the Respondent, the Chair or Vice-Chair of the Committee shall issue

(i) a summons to witness in a form provided by the Rules, or

(ii) a commission for taking evidence outside New Brunswick;

(d) a Respondent is a compellable witness;

(e) a witness shall not be excused from answering any question on the ground that the answer

(i) tends to incriminate,

(ii) may subject the witness to punishment under this Act, or

(iii) may tend to establish liability in a civil proceeding or liability to prosecution,

but the answer shall not be used against the witness in any civil proceeding or in any proceeding under a statute;

(f) with the consent of counsel to the College and the Respondent, a panel may strike out any of the charges before it, subject to such terms as are just;

(g) before the hearing is completed a panel may, upon such terms as are just, permit further charges to be brought or amendments to existing charges to be made with respect to the Respondent;

(h) a panel may require any member to produce at the hearing any documents in the member's possession or control that relate in any way to the matter before it;

(i) if the Respondent fails to attend and proof of service of the notice of hearing on the Respondent is filed with the panel, it may proceed without further notice to the Respondent as if the Respondent were present;

(j) each party to the hearing has the right to cross examine witnesses and call evidence; and

(k) only the members of the Discipline Committee who were present throughout the hearing shall participate in the committee's decision.

55(1) A panel of the Discipline Committee has jurisdiction to decide all questions of fact and law, including the admissibility of evidence, and, subject to this Act, may determine its own procedure.

55(2) A panel of the Discipline Committee may make any order that could be made by the Complaints Committee under section 45.

55(3) The oral evidence taken before the panel of the Discipline Committee on the hearing shall be recorded and, if so required, copies or a transcript thereof shall be furnished to the member and complainant at their own cost.

Action by Discipline Committee

56 After hearing a complaint, a panel of the Discipline Committee shall

(a) dismiss the complaint, in which case it shall give reasons in writing to the complainant and the Respondent,

(b) consider the complaint and order that the Respondent comply with any decision of the Committee made under section 42,

(d) refer any part of the complaint that relates to competence to the Complaints Committee with directions to take independent action or to report to the Discipline Committee with recommendations to assist in its disposition of the matter.

Sanctions

57(1) If a panel of the Discipline Committee finds that a Respondent is guilty of conduct deserving sanction, it may do one or a combination of the following:

(a) reprimand the Respondent;

(b) order that the Respondent, within a fixed time, pay to the College a fine not exceeding an amount set by the Rules;

(d) suspend the Respondent's licence for a stated period;

(e) impose such restrictions on the Respondent's licence or registration for such period and subject to such conditions as the Committee designates (including conditions of engaging in occupational activities only under supervision, not engaging in sole practice, requiring periodic inspections by the Discipline Committee or its delegate, or reporting to the Discipline Committee about specified matters);

(f) admonish or reprimand the Respondent, and if deemed warranted, direct that the fact of such reprimand or admonishment be recorded on the register;

(g) require the Respondent to undertake to limit the Respondent's occupational activities in lieu of suspension;

(h) order the Respondent to undergo counselling;

(i) direct the Respondent to satisfy the Committee that physical handicaps, mental handicaps or problems caused by drug or alcohol have been overcome;

(j) order publication of the Respondent's name incidental to any of the foregoing orders where the Registrar is not otherwise required to do so under this Act;

(k) direct that the imposition of a penalty be suspended or postponed for such period and upon such terms as the Committee designates;

(l) make such other or ancillary orders as the Committee considers appropriate or requisite;

(m) suspend the Respondent from dental hygiene for a fixed period or indefinitely, on such terms as in its opinion are necessary in the circumstances;

(n) expel the Respondent;

(o) where a licence or registration has been revoked, order that the Respondent not be permitted to apply for reinstatement before a period of time specified by the Committee has elapsed;

(p) direct the Registrar to enter into the records of the College the result of the proceeding before the Committee and to make the result available to the public incidental to any of the foregoing orders;

(q) order that the Respondent pay to the College within a fixed time in an amount decided by the panel, costs of the inquiry, including the costs of an investigation by the Administrator, the Complaints Committee, or an investigation under Part X; and

(r) make such other order as in its opinion is necessary and appropriate in the circumstances, including any order that could be made by the Complaints Committee under section 47.

57(2) Where the Discipline Committee suspends, revokes or restricts a licence or registration on the grounds of incapacity, the decision shall take effect immediately notwithstanding that an appeal has been taken from the decision.

57(3) Where the Respondent is found not guilty of conduct deserving sanction by a panel of the Discipline Committee, it may order that the College pay costs to the Respondent in an amount fixed by the panel.

57(4) Where the Discipline Committee has made an order under paragraph (1)(o), a person may not apply for reinstatement until after the period of time specified by the Committee has elapsed.

Notification

58(1) Upon conclusion of a matter by the Complaints Committee or Discipline Committee, the record of the proceedings shall be filed with the Administrator who shall submit a written report summarizing the complaint and its disposition at the next meeting of Council.

58(2) The Administrator shall give public notice in accordance with the Rules of any order suspending or expelling any Respondent from the College.

58(3) Subject to subsection (4), the result of all decisions of the Complaints Committee and the Discipline Committee in which there is a finding of conduct deserving sanction, shall be published in the official communications of the College to its members as provided in the Rules.

58(4) If, in the opinion of the Complaints Committee, there are circumstances, including a possible violation of patient privilege, that outweigh the public interest in the publication of the result of its decision, it may, in making a decision under section 45 or 46, order that the result of its decision not be published.

58(5) The decision of the Discipline Committee shall be in writing and signed by the members of the Committee who conducted the hearing and shall contain the findings and conclusions made at the hearing and the reasons for the decision.

58(6) The decision of the Discipline Committee shall be filed with the Administrator, who shall forward a copy by prepaid registered mail to the member and the complainant.

58(7) Exhibits shall be delivered to the Administrator with the decision of the Complaints Committee or the Discipline Committee.

58(8) The Administrator, if served with a notice of appeal, shall deliver the exhibits to the Court.

58(9) If no appeal is taken, the Administrator shall on request deliver the exhibits to the person who produced them.

General

59(1) The Complaints Committee and Discipline Committee, and panels of those committees, shall sit at such times and places as they consider convenient, and as frequently as circumstances require.

59(2) All hearings of the Complaints Committee shall be in private.

59(3) Discipline Committee hearings shall be public, except where matters involving public security may be disclosed, or the possible disclosure of intimate financial or personal matters outweighs the desirability of holding the hearing in public.

59(4) Panels of the Complaints Committee and Discipline Committee shall be selected for each complaint by the Chair or the Vice-Chair of the Committee having regard to language, conflict of interest or other matters that could influence the functioning of the panel.

59(5) A Respondent is entitled to be represented by counsel and to present a full and complete defence.

59(6) Where a Respondent fails to attend or remain at any proceeding under this Part, the panel conducting the proceeding may, on proof that the Respondent was given reasonable notice of the proceeding, proceed in the absence of the Respondent and make any order that it could have made had the Respondent been in attendance or represented by counsel.

59(7) Where a Respondent may have engaged in conduct deserving sanction and criminal proceedings are commenced or are likely to be commenced with respect to the Respondent's conduct, any proceeding under this Act may be deferred or stayed until the criminal proceedings have been disposed of by a court of competent jurisdiction.

59(8) The complainant, if any, shall be given notice of the hearing before the Complaints Committee and the Discipline Committee and may attend hearings in their entirety, with or without counsel, and may make written or oral submissions to the Committees before the calling of evidence and after the completion of evidence.

59(9) Notwithstanding subsection (8), at the request of a witness whose testimony is in relation to allegations of a member's misconduct of a sexual nature involving the witness, the Discipline Committee may exclude a complainant from the portion of the hearing that receives the testimony of the witness.

59(10) In subsection (9), "allegations of a member's misconduct of a sexual nature" means allegations that the member sexually abused the witness when the witness was a patient of the member.

59(11) No person is eligible to sit as a member of a committee if the person has taken part in the investigation of the subject matter that the committee is hearing.

59(12) The Discipline Committee panel selected to hear a matter shall hear the complaint not later than 60 days after the date on which the last member of the panel is appointed, unless the parties agree otherwise.

59(13) No member of the Complaints Committee or Discipline Committee shall communicate outside the hearing, in relation to the subject matter of the hearing, with a party or the party's representative, unless the other party has been given notice of the subject matter of the communication and an opportunity to be present during the communication.

Legal counsel

60(1) The College may employ or retain legal counsel or other assistance that it considers necessary under this Part.

60(2) Where legal counsel employed under subsection (1) is an employee of the College, the amount of costs that may be awarded against a Respondent may be the same as if the College had retained outside counsel.

Costs and fines

61(1) The amount of costs ordered to be paid under paragraphs 46(1)(e) or 57(1)(q) is a debt owing to the College and, when collected, is the property of the College.

61(2) The amount of fines ordered to be paid under paragraphs 46(1)(d) or 57(1)(b) is a debt owing to the College and, when collected, is the property of the College.

61(3) All costs and fines shall be payable to the College.

61(4) Where a Committee is of the opinion that the commencement of the proceedings was in whole or in part unwarranted, the Committee may order that the College reimburse the member's costs or such portion thereof as the Committee fixes.

Appeal

62(1) A party to the proceedings who is affected by a decision, determination or order of the Complaints Committee or Discipline Committee may appeal to the Court of Appeal on a question of law or fact.

62(2) A Respondent who wishes to appeal under subsection (1) shall do so by serving the Administrator with a notice of appeal within 30 days after receiving written notice of the decision, determination or order to be appealed.

62(3) An appeal shall be conducted in accordance with the Rules of Court for civil appeals, with such modifications as the circumstances require.

62(4) An appeal shall be founded upon the record of the proceedings before the Committee and upon the Committee's decision.

63(1) The Court of Appeal may make such order as may be just, including referral to the Complaints Committee or Discipline Committee to act in accordance with its directions.

63(2) The Court of Appeal may make any order respecting costs of an appeal that it considers appropriate.

Stay pending appeal

64(1) A Respondent who appeals under section 62 may apply on motion to the Court of Appeal for an order staying the decision, determination or order of the Complaints Committee or Discipline Committee pending the appeal.

64(2) A Respondent shall give the College at least 7 days' notice of a motion to stay an order of the committee.

64(3) Orders continue in force until a stay is granted or the matter is disposed of.

Prevention of sexual abuse

65(1) The College shall undertake measures for prevention of the sexual abuse of patients by its members.

65(2) Such measures referred to in subsection (1) shall include

(a) education of members about sexual abuse,

(b) guidelines for the conduct of members with patients,

(d) informing the public as to the complaint procedures under this Act.

65(3) Measures referred to in subsection (2) may, where appropriate, be taken jointly with other organizations or associations of health professionals.

65(4) The College shall report to the Minister within 2 years after the commencement of this section, and within 30 days at any time thereafter on the request of the Minister, respecting the measures the College is taking and has taken to prevent and deal with the sexual abuse of patients by its members.

65(5) The College shall report to the Minister respecting all complaints received during the calendar year respecting sexual abuse of patients by members and former members of the College.

65(6) A report under subsection (5) shall be made within 2 months after the end of each calendar year and shall contain the following information:

(a) the number of complaints received during the calendar year for which the report is made and the date each complaint was received,

(b) with respect to each complaint received during the calendar year for which the report is made,

(i) a description of the complaint in general non-identifying terms,

(ii) the Administrator's decision,

(iii) if allegations are referred to the Complaints Committee, the decision of the Committee with respect to the complaint and the date of the decision,

(iv) if allegations are referred to the Discipline Committee, the decision of the Committee, including any penalty imposed, and the date of the decision, and

(v) if an appeal is made from the decision of the Discipline Committee, the date and outcome of the appeal; and

(c) with respect to each complaint reported in a previous calendar year, a report on the status of the complaint in accordance with paragraph (b) if the proceedings initiated as a result of the complaint were not finally determined in the calendar year in which the complaint was first received.

PART X

INVESTIGATIONS

66(1) The Registrar may direct any member to submit to an investigation of the member's documents and transactions, whether or not a complaint has been received or received and withdrawn and whether or not it appears that any member's conduct may be deserving of sanction, and may appoint one or more inspectors, including himself or herself.

66(2) Any record required to be kept under this Act or the Rules shall be open to inspection at all reasonable times by an inspector appointed by the Registrar.

Investigation for cause

67 When the Registrar has reasonable and probable grounds to believe that

(a) a member's conduct may be deserving of sanction, and

(b) an investigation of the member's documents and transactions is necessary to help decide whether the member's conduct deserves sanction,

the Registrar may direct the member to submit forthwith to such investigation in accordance with the Rules and may appoint one or more inspectors to investigate whether the conduct or actions of a member constitutes professional misconduct, incompetence or incapacity.

Powers of inspectors

68(1) An inspector appointed by the Registrar, or the Registrar acting as an inspector, may at any reasonable time, and upon producing proof of appointment, enter and inspect the business premises of a member and examine anything found there that the inspector has reason to believe will provide evidence in respect of the matter being investigated.

68(2) Subsection (1) applies notwithstanding any provision in any Act relating to the confidentiality of health records.

68(3) No person shall, without reasonable excuse, obstruct or cause to be obstructed an inspector while the inspector is performing his or her duties.

68(4) No person shall withhold, conceal or destroy, or cause to be withheld, concealed or destroyed, anything that is relevant to an investigation under this Act.

68(5) Upon the ex parte application of an inspector, a judge of The Court of Queen's Bench of New Brunswick who is satisfied on information by oath or solemn affirmation that the inspector has been properly appointed and that there are reasonable grounds for believing that

(a) the member being investigated has committed an act of professional misconduct, is incompetent or incapacitated, and

(b) there is in a building, receptacle or place anything that will provide evidence in respect of the matter being investigated,

may issue a warrant authorizing the inspector to enter the building, receptacle or place and search for and examine or remove anything described in the warrant.

68(6) An inspector entering and searching a place under the authority of a warrant issued under subsection (5) may be assisted by other persons and may enter a place by force.

68(7) An inspector entering and searching a place under the authority of a warrant issued under subsection (5) shall produce identification and a copy of the warrant, upon request, to any person at that place.

68(8) A person conducting an entry or search under the authority of a warrant issued under subsection (5) who finds anything not described in the warrant that the person believes on reasonable grounds will provide evidence in respect of the matter being investigated, may seize and remove that thing.

68(9) An inspector may copy, at the expense of the College, a document that the inspector may examine under section 66 and subsection (1), or under the authority of a warrant issued under subsection (5).

68(10) An inspector may remove a document referred to in subsection (9) if it is not practicable to copy it in the place where it is examined or a copy is not sufficient for the purposes of the investigation and may remove any object that is relevant to the investigation and shall provide the person in whose possession it was with a receipt for the document or object.

68(11) An inspector, where a copy can be made, shall return a document removed under subsection (10) as soon as possible after the copy has been made.

68(12) A copy of a document certified by an inspector to be a true copy shall be received in evidence in any proceeding to the same extent and shall have the same evidentiary value as the document itself.

Report to Registrar

69 An inspector shall upon completion of an investigation report in writing to the Registrar who shall forthwith provide a copy of the report to the member.

Report to Administrator of Complaints

70 When the report of an inspector indicates that the member's conduct may be deserving of sanction, the Registrar shall forward the report and any other relevant information in the Registrar's possession to the Administrator.

PART XI

OFFENCES AND INJUNCTIONS

Offences

71(1) A person who violates subsection 34(1) or section 35 commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category H offence.

71(2) Where an offence under subsection (1) continues for more than one day,

(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act, multiplied by the number of days during which the offence continues, and

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act, multiplied by the number of days during which the offence continues.

71(3) Any penalty imposed under this Act, when recovered, shall be paid to the College for its use.

71(4) The Court may order a person who is convicted under subsection (1) and who has received fees for services with respect to the violation in question to reimburse the person who has paid the fees.

Offence by corporation

72 Where an offence under this Act is committed by a corporation, including a professional corporation, every director, manager, secretary or other officer of that corporation who has assented to the commission of the offence is a party to the offence.

Laying an information

73 An information alleging an offence under this Act may be laid in accordance with the Provincial Offences Procedure Act in the name of the College on oath or solemn affirmation of the Registrar or of a person authorized by Council.

Injunctions

74(1) The Court may, on application by the College and on being satisfied that there is reason to believe that a person has violated or will violate this Act or a Rule made under it, grant an injunction restraining the person from committing such acts and, pending disposition of the action seeking the injunction, the Court may grant an interim injunction.

74(2) A contravention may be restrained whether or not a penalty or other remedy has been provided by this Act or the Rules made under this Act.

PART XII

GENERAL

Service

75(1) A member, former member, applicant or other individual may be served with a notice or other document

(a) personally,

(b) by mailing it by registered or certified mail to the person's last known address as shown on the records of the College, or

75(2) A document may be served on the College or Council

(a) by leaving it at or mailing it by registered or certified mail to the head office of the College, or

(b) by personally serving it on an officer of the College.

75(3) A notice or other document that is served by registered or certified mail shall be deemed to have been received on the fifth day following mailing.

Majority and quorum

76(1) Where this Act requires or authorizes an act or thing to be done by more than 2 persons, a majority may do it unless this Act provides otherwise.

76(2) Unless otherwise provided, at a meeting of Council or a committee, one-half of the number of members then in office is a quorum.

76(3) If a quorum of Council or a committee agrees, a meeting may be held by telephone or video conference, or by such other means as provided in the Rules.

Certificates by Registrar

77 A certificate that relates to the administration of the affairs of the College and purports to contain the signature of the Registrar shall, in the absence of evidence to the contrary, be proof of the contents of the certificate.

Protection against actions

78(1) No action lies against a member, a member of Council, a committee, a member of a committee, an officer, the Registrar, the Administrator, an employee or an agent of the College or a director for anything done or not done by that person in good faith under the provisions of this Act or the Rules.

78(2) The College shall indemnify any person referred to in subsection (1) for any costs or expenses incurred in any legal proceeding taken against that person for anything done or not done by that person in good faith under the provisions of this Act or the Rules.

Privileged Documents

79(1) Where a member is requested or ordered to produce a document or disclose information under this Act, and the member objects on grounds that it is subject to patient privilege and the patient objects to its production or disclosure, the document shall be sealed without inspection or copying and placed in the custody of the Administrator.

79(2) Where a document is sealed under subsection (1), the member shall provide the College with the name and address of the patient who objects to disclosure.

79(3) After a period of 45 days after being provided with the name and address of the patient, the Administrator shall return the sealed document to the member unless the College obtains a written waiver of privilege signed by the patient.

79(4) The Court may, upon application, extend the time provided in subsection (3).

Non-disclosure of privileged and confidential information and documents

80(1) A person who, in the course of carrying out duties under this Act, becomes aware of information or a document that is confidential or is subject to patient privilege, has the same obligation respecting disclosure of that information or document as the member from whom the information or document was obtained.

80(2) A member who, in accordance with this Act, provides the College with information or a document that is confidential or subject to patient privilege shall be deemed not to have breached any duty or obligation that the member would otherwise have had to the College or the patient not to disclose the information or document.

80(3) A person who, during the course of any court proceeding with respect to a matter under this Act, becomes aware of information or a document that is confidential or subject to patient privilege, shall not utilize, produce or disclose the document or information for a purpose other than that for which it was obtained.

80(4) In any court proceeding with respect to a matter under this Act, the court may exclude members of the public from the hearing where the court considers the exclusion is necessary to prevent the disclosure of information or the production of a document that is confidential or is subject to patient privilege.

80(5) In giving reasons for judgment in any court proceeding, the court shall take all reasonable precautions to avoid including in its reasons any information before the court that is confidential or is subject to patient privilege.

Continuing jurisdiction of College

81 A person whose licence is revoked, suspended or expired or who resigns as a member continues to be subject to the jurisdiction of the College with respect to conduct or acts that would constitute professional misconduct, incompetence or incapacity referable to the time when the person was licensed or to the period of suspension.

PART XIII

TRANSITIONAL PROVISION AND

CONSEQUENTIAL AMENDMENTS

Transitional provision

82 A person who, on the day before this Act comes into force, was licensed as a dental hygienist by the New Brunswick Dental Society shall be deemed to be a licensed member of the New Brunswick College of Dental Hygienists on the day this Act comes into force.

Consequential Amendments

An Act Respecting The New Brunswick Dental Society

83 An Act Respecting The New Brunswick Dental Society, chapter 73 of the Acts of New Brunswick, 1985, is amended

(a) in subsection 2(1) by repealing the definition "dental hygienist";

(b) by repealing subsection 4(4);

(c) in subsection 4(7)

(i) in paragraph (a) by striking out ", 4(4)";

(ii) in paragraph (b) by striking out ", 4(4)";

(iii) in paragraph (c) by striking out ", 4(4)";

(d) by repealing paragraph 5(1)(n);

(e) in section 13 by striking out "dental hygienist or" wherever it appears;

(f) in section 29 by striking out "or dental hygienist"; and

(g) in section 31 by adding after paragraph (d), the following:

(d.1) the practice of dental hygiene by a dental hygienist as defined in the New Brunswick Dental Hygienists Act;