Mietkiewicz, the vice-president of the COC, contends that:
• The COM lacks the jurisdiction to seek injunctive relief against opticians in Ontario.
• Communicating the result of a refractometry test is not a controlled act under the relevant legislation.
• Prescribing by an optician should not be the subject of injunctive relief. Moreover, it does not appear from the application record that any opticians are prescribing.
• Dispensing by an optician without the prescription of a physician or optometrist, or illegal dispensing by a non-optician, should not be the subject of injunctive relief. Moreover, Mietkiewicz argues that there is no evidence that an optician dispensed eyeglasses to McMeekin or Thompson.
• There is no statutory requirement that an optician properly dispensing on the prescription of a physician or optometrist, must look behind the prescription to ascertain the nature of the doctor/patient relationship. Injunctive relief in this regard is therefore inappropriate.
• Refractometry testing should not be the subject of the relief sought on this application. She contends that there is insufficient evidence on this application to enable the court to draw conclusions about the safety and accuracy of the Eyelogic System. She notes that at the request of the Minister of Health, the COC has already passed a motion prohibiting opticians from conducting refractometry tests until standards of practice for these tests are in place. Mietkiewicz notes that the COC is taking steps to enforce this ban. She also noted that draft standards have been approved in principle by the COC for the purpose of circulation to stakeholders. These standards would only permit an optician to dispense eyeglasses if certain conditions have been met. These conditions include the following:
- The task of performing the refraction on the patient must be assigned to the member by a physician or optometrist who has an existing patient/prescriber relationship with the patient;
- The member must have, with the express written consent of the patient, communicated the results of the refraction to the patient’s prescriber; and
- The member must have received a prescription for the patient from the patient’s prescriber or the prescriber’s authorization to alter the patient’s existing prescription
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