• Professional Regulation: The Political Winds are Blowing
  • May 1, 2019 | Author: James Casey
  • Law Firm: Field Law - Edmonton Office
  • Professional regulators should be aware that “the political winds are blowing.” Some say that a real storm is brewing while others claim that this is simply a short-lived squall of the type that regularly buffet the good ship “Self-Regulation”. Whatever your views, professional regulators are well-advised to batten down the hatches, post a sharp look-out high in the rigging, ensure that the captain is firmly on the wheel, call for “all hands on deck”; trim the sails, double-check the charts and plot a course that moves the ship forward in the storm while avoiding the many shoals and reefs ahead.

    A brief overview of the professional regulatory “weather system” of just the past 6 months:

    1. British Columbia: Professional Governance Act (November 2018)

    The British Columbia government commissioned an independent review of the system of “professional reliance” in the British Columbia natural resource sector. “Professional reliance” is a system in which the oversight systems of professional regulatory Colleges are relied upon for quality assurance rather than direct government oversight. The report by Mark Haddock was submitted in June 2018 and recommended changes to the governance of professional regulators. The report led to the Government introducing new legislation, the Professional Governance Act, in November 2018 which makes sweeping changes to the governance processes of the 5 professional regulators in the natural resource sector and creates a new government oversight body, the Office of the Superintendent of Professional Governance.

    2. Alberta: An Act to Protect Patients (November 2018)

    Issues concerning sexual abuse were raised by the opposition in the Legislature in the spring of 2018. A political consensus developed that legislation was desirable. Bill 21, An Act to Protect Patients, was introduced in the legislature October 30, 2018 and passed November 8, 2018. Some of the legislation came into effect November 19, 2018 with the balance on April 1, 2019. Bill 21 represents the most comprehensive and important set of amendments to the Health Professions Act (HPA) in its two decade history. Bill 21 revamps the discipline process for complaints of sexual abuse and sexual misconduct and makes other changes to the HPA designed to enhance transparency and increase government oversight.

    Bill 21 was the result of a confluence of forces including: political doubt as to whether regulators were adequately addressing sexual abuse and sexual misconduct, media scrutiny of regulatory processes, and wide-spread public support for change. The speed with which matters progressed from the issue being raised in the Legislature to the passage of the legislation was truly remarkable. Bill 21 is a reminder to professional regulators that for all the inherent delays in the legislative process with competing governmental priorities, government can move very quickly to enact legislation when the political will is present.

    While regulators are moving forward at government’s request with establishing treatment and counselling programs for those who have suffered from sexual abuse and sexual misconduct by health care professionals, the government will need to pass a regulation establishing the mandatory parameters of the counselling and treatment program. Hopefully, government will engage in a substantive consultation process with Colleges on the regulation. History in Alberta has repeatedly taught us that professional regulation is strongest and the public interest is best protected when Colleges are given the opportunity to engage in substantive consultation on the content of the legislation. Colleges will need to be ready to provide the necessary input as the counselling and treatment program is finalized in regulation.

    3. British Columbia: Report into the College of Dental Surgeons of British Columbia (the CDSBC) and the Health Professions Act (April 2019)

    In March 2018 the Government of British Columbia asked Harry Cayton, the former chief executive of the United Kingdom’s Professional Standards Authority to conduct a review of the CDSBC. The report was released in April 2019 and expresses serious concern about the performance of the CDSBC. The report makes 21 recommendations to ensure the CDSBC is acting in the public’s best interest. The government accepted all the recommendations and directed the CDSBC to bring forward an implementation plan within 30 days. Most importantly, the report makes recommendations for a dramatic overhaul of the health-regulatory framework which would dramatically impact self-regulation. The report recommends Councils be appointed based on merit; that smaller regulators be merged into fewer, larger ones; a simplified complaint process; enhanced transparency of regulatory processes; removing adjudication of discipline to an independent body; a common register for all health professions; and an independent oversight body. In response the Minister has established an all-party committee to consider options and draft a proposal on how to modernize the regulatory framework for health professions in B.C. The government press release indicates that the health professional colleges are being encouraged to consider amalgamation of Colleges.

    4. Alberta: The Election of the United Conservative Party (April 16, 2019)

    On April 16, 2019 the UCP was elected as the new government for the province of Alberta. During the campaign the UCP released its election platform. One plank of the campaign drew little attention but should definitely “be on the radar” of professional regulators. Buried on page 42 of the 100 plus page platform is a promise to introduce the Fair Access to Regulated Professions and Compulsory Trade Act. The purpose of the proposed Act is to ensure that registration practices are transparent, objective, impartial and fair. A “Fairness for Newcomers Office” will work with trade and professional licensing bodies “to streamline, simplify and accelerate foreign credential recognition with a goal of giving applicants a clear answer within six months or less of their application.” The document also states that the Office will: “Publicly identify and hold accountable those regulatory bodies that have unreasonable barriers to credential recognition.”

    This is obviously the creation of a type of “Fairness Commissioner” as found in some other provinces. This is a form of “meta-regulation” in which a regulator regulates the regulators. Obviously, not all planks in political platforms are ultimately implemented so it is uncertain whether legislation will be introduced. Regardless, regulators need to focus on the issue. We all know that assessing the credentials of internationally educated professionals is complex, challenging and crucially important. Regulators need to ensure that only those internationally educated professionals that have entry-level competence at Canadian standards are registered in the interests of public protection. However, regulators must also ensure that there are no unreasonable barriers to recognition. As part of an ongoing commitment to process improvement, regulators should be examining ways to strengthen their assessment processes. In addition, regulators should be ready to engage in dialogue and consultation with the government about the issue to ensure that any legislation that is introduced pragmatically advances the public interest without imposing undue burdens on regulators.

    The new government has promised that its focus is going to be on jobs, pipelines and strengthening the economy. However, the election of a new government may also provide opportunities for regulators to ask government to attend to the urgent need to find legislative time to update the regulations for numerous Colleges under the Health Professions Act. Regulators should with a united voice make the point that this unglamorous “nuts and bolts” aspect of professional regulation needs urgent attention. And as previously noted, regulators will need to engage the new government in the development of regulations concerning the counselling and treatment program introduced by “An Act to Protect Patients”.

    Context

    It is important to understand the broader context for these dramatic events of the past 6 months including:

    • From my experience working in the area of professional regulation for the past 30 years, I consider that societal and political skepticism in Canada of the societal value of self-regulation is at an all-time high.
    • Trends towards establishing independent oversight bodies.
    • Trends towards amalgamation of Colleges including the three nursing Colleges in B.C.
    • Trends towards rebalancing Councils to include a majority of public members.
    • Rethinking the role of Councils and considering the possibility of merit-based appointments rather than electing members.
    • The loss of self-regulation of the real estate profession in B.C.
    • Governments taking control of a number of professions across Canada.
    • Media stories about the self-regulating professions have an unrelenting focus on concerns about a lack of transparency.
    • The McMaster Report on the governance of the health professions in Ontario recommending dramatic changes.

    Conclusion

    To return to the nautical metaphor in the first paragraph of this article, the weather is definitely stormy and the good ship “Self-Regulation” is journeying on turbulent seas. A few practical suggestions with a nautical theme:

    • Batten down the hatches”: adopt a risk-reduction approach to regulating the profession and a risk-management approach to managing the organization.
    • Post a sharp look-out high in the rigging”: Ensure that you have robust government-relations and communications expertise.
    • Ensure that the captain is firmly on the wheel and call for “all hands on deck”: Now is the time for strong, inspired leadership by Council and the senior staff of regulatory organizations.
    • Trim the sails”: be open to change and focus on process evaluation and process improvement initiatives. Engage in “regulatory check-ups”. Have the organizational courage to ask: “Where can we improve?”
    • Plot a course that moves the ship forward in the storm”: Ensure that the organization has an unrelenting focus on advancing and protecting the public interest. Platitudes have never been enough. Regulators need to be able to demonstrate to the public and government that they advance and protect the public interest.
    • "Double-check the charts”: Regulators need to have an outward focus on professional, societal and governmental developments and trends affecting self-regulation.

    All of the above will help regulators successfully navigate the storm avoiding the shoals and reefs ahead and move the ship resolutely forward in serving and protecting the public interest.