Court issues decision on refraction and remote prescribing

James McLean brought a Court application asking a judge to determine whether his proposed business model to provide local sight tests and using an Alberta-based ophthalmologist to sign the “prescriptions” was lawful. The Attorney General of Ontario, joined by the College of Opticians of Ontario along with this College argued that Mr. McLean could not do so. On January 5, 2015, the judge agreed.

Mr. McLean is an Ontario optician who practises out of Hamilton. A company that he controls, 2217758 Ontario Inc., leased an automated refraction device called “Eyelogic System.” The Eyelogic System conducts sight tests, measures the refractive error of the eye, and automatically generates a prescription.

Mr. McLean wanted to use the Eyelogic System to conduct sight tests. Mr. McLean would then send the results and preliminary “prescription” to an ophthalmologist practising in Alberta who, based on the information, would issue a prescription. Armed with that prescription, Mr. McLean would dispense the eyeglasses.

Mr. McLean believed there is no law or legislation that stops him from doing so, and asked the Court to agree. The Attorney General, College of Opticians of Ontario, and this College opposed this kind of interpretation. Their primary argument was that an Ontario optician cannot dispense eyewear based on a prescription written by an optometrist or ophthalmologist who has not examined the customer. This College’s Optometric Practice Reference states:

Refractive assessment alone does not provide sufficient information to allow an optometrist to issue an appropriate prescription for subnormal vision devices, contact lenses or eyeglasses.

The judge agreed. He went on, however, to talk about what role opticians can play in refraction. He described an optician’s scope of practice as the “provision, fitting and adjustment of corrective eyewear.” While the judge observed that performing refractive tests does not fall within the scope of practice of opticians, he also stated the Opticianry Act suggests that there is room for opticians to be involved in the evaluation process. He pointed out that there remains a stalemate on what role opticians can play in refraction because neither the College of Optometrists nor the College of Physicians and Surgeons have agreed on what those standards should be. The judge concluded by saying that this was a matter for the Ontario government to resolve. He stated:

On the evidence before me, it is clear that there is unfinished business relating to the appropriate model for regulation of refractive testing by Ontario health care professionals.

And further:

It ultimately falls on the Minister as part of the Ontario government to resolve the issues raised by this policy debate in a timely manner, consistent with attendant health care concerns. In my view, it is not appropriate for the court to become involved in this process in the absence of compelling grounds for doing so. I do not consider such grounds to exist in this case.

Mr. McLean was ordered to contribute $23,000 toward the Attorney General’s costs.


Click here to read the Court decision (PDF).