This is an excerpt of Steinecke Maciura LeBlanc’s “Governance for Regulators” handbook. To view additional sections of the handbook, click here.
a. Developing Policies
A primary tool for Boards to direct the regulator and to protect the public is making high-level polices. In fact, making policies is probably a major component of most regulatory Board meetings.
Policies can take various forms. For example, proposing a change to the enabling statute or regulations of the regulator is a policy decision. So is amending the regulator’s by-laws. Most regulators also issue policy documents under various names including: standards of practice, directives, guidelines, practice advice, protocols, or advisory notices. Regardless of its name, such document sets out expectations of practitioners (and sometimes of the regulator itself) that enhance the protection of the public.
Typically policies address either recurring areas of challenge for practitioners (e.g., record keeping, scope of services, confidentiality and privacy) or emerging areas of priority (e.g., use of social media, use of technology, promoting equity, diversity and inclusion). Policies are sent to practitioners and posted on the regulator’s website for use by practitioners, the public, and staff and committees of the regulator.
To ensure policies are relevant and helpful they are developed through a rigorous process. The process includes:
- Identifying a topic that is sufficiently important and relevant to warrant precious Board time and energy.
- Researching the issue, including the nature and extent of the harm, the options that are available to address the harm, and the advantages and disadvantages of each option.
- Preparing a briefing note for the decision makers (i.e., the Board).
- Consulting with suitable stakeholders, where feasible.
- Making a decision.
- Implementing the decision.
- Monitoring, reviewing, revising the policy periodically and as needed.
Ernie Eager, fresh from the success of his work on international applicants, is anxious to reduce the restrictions on how practitioners describe their areas of specialty. Currently only reference to formally recognized specialties are permitted. Through relentless advocacy he has the issue put on the agenda and gets a majority of the Board to remove the restriction for anyone who has taken post-graduate training in a particular area of practice. Within weeks hundreds of practitioners who have taken an online course are holding themselves out as specialists with exotic titles (e.g., four-leaf clover strategist). Multiple complaints are made by both clients and other practitioners. The media picks up on the confusion. Two professional associations line up on opposite sides of the issue. The Competition Bureau opens a file. The responsible Minister’s office requests a copy of the data upon which the decision to remove the restrictions was made.
Hastily made policies, except in areas of true emergency, are almost always a mistake. Carefully screening policy topics related to the strategic plan of the regulator, doing the necessary research and consultation and fully debating the policy helps ensure that wise policy choices are made.