Grey Areas – Recent Issues
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Awards season has arrived in North American popular culture. Some critics argue that such recognitions are flawed for numerous reasons including the use of non-inclusive selection criteria and providing a platform for celebrities to speak out on issues outside of their expertise.
One highlight of the recent Canadian Network of Agencies for Regulation (CNAR) conference was participating in the pre-conference workshop on What Makes a Good Regulator. Leading the workshop was an impressive international team that included:
- Mark Stobbs, Director of Scrutiny and Quality at the Professional Standards Authority for Health and Social Care in England and Wales
- Mary Russell, Acting National Director Notifications and National Manager (Transition) Intake and Assessment, Australian Health Practitioner Regulation Agency
- Claude Balthazard, Vice-President, Regulatory Affairs and Registrar, Human Resources Professionals Association (HRPA)
- Darrel Pink, practising in association with Steinecke Maciura LeBlanc and former Executive Director of the Nova Scotia Barristers’ Society
as well as a team of five from Steinecke Maciura LeBlanc.
As measurement tools, statistical analysis, and artificial intelligence gain prominence, regulators must consider when and how to use them.
The regulator for physicians in the UK, the General Medical Council (GMC), offers a free course to international practitioners on practising in the UK. This well-recognized initiative attempts to connect physicians trained elsewhere with others in similar circumstances, to provide an overview of how the health system works in the UK and to provide insight into ethical issues they might encounter in the UK that might be handled differently in diverse practice cultures. It is promoted as follows: “Get practical guidance around a series of real‑life ethical scenarios, including areas where you’ll encounter differences in the UK, such as consent, confidentiality, raising concerns, care for children and young people, and prescribing.”
Most recent studies and reviews of professional regulators focus on how they should maintain the confidence and trust of the public. A recent independent review of the medical regulator in the UK examines how it should maintain the confidence of the profession it regulates. The review flows directly from a high profile case in which a trainee physician (Dr. Bawa-Garba) was found guilty of manslaughter, based on gross negligence, and was then disciplined by the General Medical Council (GMC) for the death of a child despite the presence of a number of systemic factors (e.g., understaffing).
Last month the Saskatchewan Registered Nurses Association (SRNA) released a report by the Professional Standards Authority (PSA) reviewing its complaints process. The SRNA is the regulatory body for registered nurses in Saskatchewan. The PSA has been called upon by a number of regulators in Canada, and around the world, to review current processes and evaluate what is going well and to identify areas for improvement.
For years observers have been saying that regulators of professions are under intense scrutiny and unless they regained public confidence then self-regulation without systematic oversight would end in Canada. Over time it has become easier to ignore these pleas as self-regulation continued to muddle along, but no longer. While the analogy to the little boy who cried wolf is imperfect (no one would call the author of the report or his agency’s ideas “wolves”), the concept of snubbing previous warnings and subsequently facing real consequences is relevant.
A decision released by the Ontario Court of Appeal yesterday makes it more difficult to determine when electronic, cross-border professional services can be restricted.
Regulators are increasingly experimenting with strategies to change the approaches and attitudes of the profession as a whole rather than just engaging in enforcement activities in relation to individual practitioners. One such experiment in the United Kingdom is celebrating its fifth birthday. The Professional Standards Authority (PSA) has recently released a report analyzing the outcome of the initiative, identifying barriers to its full implementation and suggesting enhancements.
Oversight bodies for professional regulators are well established in a number of jurisdictions around the world. Two prominent examples are the Office des professions du Québec and the Professional Standards Authority in the UK. Tentative steps in common law Canada include the Health Professions Regulatory Advisory Council of Ontario (HPRAC) and the Fairness Commissioners in some Canadian provinces. However, the activities of HPRAC have been scaled back in recent years to being almost exclusively a policy advisor to the government and Fairness Commissioners are limited to reviewing registration practices.
A number of professions have a tribunal that is authorized to review the decisions of their screening committee. Typically the reviewing tribunal examines the reasonableness of the decision and the adequacy of the investigation. A frequent issue is how much deference should the reviewing tribunal accord to the investigative choices and dispositions made by the regulator and its screening committee. In The College of Physicians and Surgeons of British Columbia v The Health Professions Review Board, 2018 BCSC 2021, <http://canlii.ca/t/hw4sk> the Court provided a detailed analysis of this issue.
 Screening committees are often called a Complaints Committee or an Investigations Committee. In some professions, staff, such as the Registrar, perform this function.
Can a study of legal services regulation in Scotland have relevance for regulators in widely different professions? Should regulators be concerned about approaches and recommendations that are not specific to them? Anyone interested in professional regulation will have noted increasing government interest in this area, including reviews of health professions regulation, professional reliance, complaints processes and all that has traditionally fallen within the province of self-regulation. Government interest, to the point of abolishing regulators, should cause Canadian regulators to take note.
This same question was asked at two major regulatory conferences held in the last month: Should professional members of regulatory Boards / Councils be elected by the membership or should they be selected by a merit-based process? In both cases the vast majority of people in the room supported merit-based selection. One of the votes was conducted electronically and gave a precise figure: 92% of respondents supported merit-based election.
Now it seems timely to learn again from others’ experiences of using right-touch regulation. The varied and interesting papers in this publication set out the interesting and varied ways in which different regulators in different sectors, in different jurisdictions have applied right-touch regulation to their particular problems and challenges.
So begins the just-released publication by the Professional Standards Authority of papers from regulators around the world as to how they have applied the principles of right-touch regulation. Below is our eclectic selection of highlights from some of the papers.
Two major reports on professional regulation in British Columbia were recently released. They share a number of common themes and both are of interest to regulators generally.
On June 15, 2018, the Supreme Court of Canada released two companion decisions in the Trinity Western University (TWU) matter. These high profile and long-awaited decisions articulate Canada’s highest court’s balancing of the competing rights – of respect for sexual orientation and religious belief – when they collide in the regulation of professions. However, for regulators, the real story about these decisions is the degree of deference the Court awarded to policy decisions made by regulators.
Harvard Professor Malcolm Sparrow acknowledges the competing pressures on regulators when he said they are told to “process things quicker – and be more careful next time”. Many recent studies, media articles, court decisions and amendments to statutes have emphasized the need for regulators to investigate thoroughly, provide fairness to and demonstrate sensitivity toward both complainants and practitioners and to provide due process in discipline hearings including providing fully explanatory reasons and abundantly justified sanctions.
Most regulators can point to some aspects of their profession that are highly litigious and where they and their members are drawn into disputes. Anyone routinely involved in child custody cases or the entitlement to insurance or government benefits will be familiar with this concern. In Sanders v College of Physicians and Surgeons of British Columbia, 2018, BCSC 441, a regulator was brought into such a clash involving end-of-life care for the complainant’s mother.
A branch of McMaster University just posted a major research study on modernizing the oversight of the health professions in Ontario. Funded by the Ontario government, the study has three major components: an Evidence Brief of academic research; three Citizen Panels that discussed the issues with a representative cross-section of Ontarians; and a Stakeholder Dialogue. Each has a separate report.
Regulators are increasingly using policy documents rather than legislation to set out expected conduct by practitioners. This use of policies raises important questions as to the authority of regulators to make such policies and the authority of the policies once made.
As noted in the last issue of Grey Areas, the UK is currently undertaking a significant and comprehensive review of the regulation of the health and social work professions. The oversight body, the Professional Standards Authority (PSA), has released a lengthy report in support of that review. The PSA report, entitled “Right Touch Reform” outlines the current regulatory model and makes some suggestions for direction for reform. The PSA still intends to make actual submissions to the review.
The UK is currently undertaking a significant and comprehensive review of the regulation of the health and social work professions. The oversight body, the Professional Standards Authority (PSA), has just released a lengthy report in support of that review. The PSA report, entitled “Right Touch Reform” outlines the current regulatory model and makes some suggestions for direction for reform. The PSA still intends to make actual submissions to the review.
Regulators have always struggled with how to regulate conflicts of interest involving their members. Some conflicts are inherent in the practice of almost every profession. Any regulator of a profession where its practitioners recommend courses of action to clients that the practitioner will implement for a fee struggles to ensure that the advice is entirely candid and altruistic. Of course recommendations are at the core of the professional duty of the practitioner, but advice which departs significantly from professional standards can be reviewed. Clients must also appreciate the existence of this conflict and be encouraged to ask questions or seek a second opinion.
A lot of people talk about risk-based regulation. Some regulators even use risk management tools in their decision-making. However, as of yet, few regulators systematically engage in risk-based regulation.
Few would disagree that honesty is an essential trait for practitioners. Dishonesty undermines the trust that clients must have in order to be open and candid with practitioners. Clients will not accept and follow the advice they receive unless they believe its source. In addition, dishonesty compromises the reputation of a profession and its regulator.
As we mark our firm’s twentieth anniversary practising professional regulation, we have reflected back on the lessons we have learned. Of course, there are many of them, but here are our top twenty.
Discipline hearings are, after all, hearings. Panel members should learn from the mistakes of other adjudicators or be destined to repeat them. Some recent trends in court adjudications are instructive for disciplinary panel members. Three enlightening examples from very recent Ontario Court of Appeal decisions relate to self-represented litigants, delayed reasons for decision and unprepared counsel.
Last Thursday the Supreme Court of Canada did something unusual. It decided a case dealing with professional regulation. Even more unusual, the case dealt with something other than complaints and discipline. In fact, the case dealt with continuing professional development (CPD), a topic that has reached any court only a handful of times.
There is no doubt that the concept of self-regulation of professions is under scrutiny. However, assuming that society still intends to regulate a profession, what are the alternatives? The most likely ones are for government to appoint its own agency or to directly regulate the profession through civil servants. However, these approaches have their own challenges including developing and maintaining expertise in the nuances of the profession and retaining a basic level of acceptance and support from the profession itself.
Hearings are public. That used to mean little more than the public could attend if they heard about it. Before the internet, “public notice” of hearings was often just a piece of paper posted in the reception area of the regulator and a person answering specific questions on the telephone.
A highly unusual trial is unfolding in a Toronto courtroom in which a self-represented defendant, Xiu Jin Teng, has been ordered to watch her own trial remotely from a separate courtroom. Ms. Teng is charged with the first degree murder of her husband. The presiding judge was forced to make the extraordinary move after frequent disruptive outbursts by Ms. Teng that significantly impeded the progress of the trial.
Most professions adjudicate allegations of sexual abuse by their practitioners. There is increasing scrutiny of how the legal system, including regulators of professions, deals with such concerns. In particular, how can adjudicators appropriately hear and evaluate sexual abuse allegations fairly?
With the publication of its paper on Right Touch Regulation in 2010, the United Kingdom’s Professional Standards Authority (PSA) leapt to the forefront of international thinking on professional regulation. The PSA updated that paper in 2015 as well as publishing another paper entitled Rethinking Regulation that called for a radical overhaul of the regulation of the health and social service professions in the UK.
Self-regulators do not have much of a say in which professional members are elected to their Boards and Councils. Regulators can have a say, however, on who serves on which committees. The case of Justice Robin Camp illustrates the need to do so.
Just a day before Premier Christy Clark announced the end of self-regulation for the British Columbia real estate profession, an Independent Advisory Group issued its highly anticipated report on the industry.
In school yards and other circles, disclosing the bad behaviour of others is frowned upon. However, for regulated practitioners there is an expectation that they will make disclosure, where necessary, to protect the public.
It matters what language is used to describe the standard of proof on the prosecution in discipline hearings. While the onus of proof is always on the regulator, the issue of “by how much” the regulator has to prove the allegations (i.e., the standard of proof) is often the subject of debate.
Almost every regulator uses electronic communications to conduct business. It is common for secure portals on the regulator’s website to be used for sensitive information and for “regular” email to be used for less sensitive matters.
The Jian Ghomeshi trial has generated significant discussions about the investigation, prosecution and defence of sexual assault charges. Sexual abuse cases before regulators also typically involve pure credibility issues. Analyzing credibility issues and giving persuasive reasons for those findings is one of the most challenging tasks for courts and tribunals. That task may have gotten a lot harder as a result of the Ontario Divisional Court decision of Stefanov v College of Massage Therapists of Ontario, 2016 ONSC 848.
Last week two of the most anticipated (by professional regulators) court decisions in years came down. In both cases, puzzling rulings about the authority of regulators were set aside and more understandable expectations were confirmed.
Earlier this month York University settled a human rights complaint about the way it handled accommodation requests from students. At issue was the practice of the school of asking for the diagnosis of the student when assessing a request for accommodation for the student’s disability. The school said that having this information helped it to better accommodate the disability.
A regulator’s primary duty is to serve and protect the public interest. This means that the regulator’s duty to anyone else (i.e., members, applicants for registration, complainants and other individual members of the public) is subordinate to the primary duty. It is easy to forget this foundational principle when a regulator faces pressure from oversight bodies or the threat of legal challenge by an individual who feels they are not receiving appropriate consideration.
Regulators tend to develop good working relationships with their legal counsel. Staff in particular who work regularly with counsel develop a friendly comradery. Where the regulator employs in-house counsel, the day to day contact can become even closer.
Last month, a United Kingdom agency released a major report entitled “Rethinking Regulation”. The Professional Standards Authority (PSA) oversees statutory bodies that regulate health and social care professionals in the UK. The PSA developed the widely respected concept of “right touch regulation” in 2010. The report should be mandatory reading for regulators of all professions everywhere.
The effect of Uber on the regulation of the taxi industry is a lesson to all regulators. If a regulator does not remain sensitive to emerging trends, it can become irrelevant in a shockingly short period.
When CityNews reporter Shauna Hunt confronted fans shouting degrading comments during a live interview at a soccer match, the video of her doing that went viral. One of the men trying to justify his actions was employed by a government agency. He was fired almost immediately after the video became public.
Earlier this month, Lori Widmer wrote an article for a risk management magazine entitled: “Risky Rhetoric: When Personal Opinions Damage Corporate Brands”. While completely unrelated to the Shauna Hunt incident, it set a context for the broader discussion.
One of the most difficult tasks for members of discipline hearing panels is to make credibility findings. Such findings are particularly challenging in sexual abuse matters. So it is helpful when a court provides specific guidance on how hearing panels can properly make such determinations. Earlier this month the Divisional Court did just that in Takashima v. Ontario College of Teachers, 2015 ONSC 3125.
A recurring problem for regulators, particularly for professions with fewer numbers, is to try to constitute panels to deal with complaints or discipline. Too often all available professional panel members know the practitioner or a key witness.
A regional session of the Council on Licensure, Enforcement and Regulation (CLEAR) was held early this month in Toronto on the topic of transparency by regulators. The well-attended event examined transparency from two perspectives: transparency of process (e.g., when making rules) and openness of information about individual practitioners.
As discussed previously, risk management follows a systematic cycle beginning with risk identification and then moving on to risk assessment, risk treatment and monitoring and assurance. In this issue we look at the risk monitoring and assurance stage.
As discussed previously, risk management follows a systematic cycle beginning with risk identification and then moving on to risk assessment, risk treatment and monitoring and assurance. In this issue we look at the risk treatment stage.
As discussed previously, risk management follows a systematic cycle beginning with risk identification and then moving on to risk assessment, risk treatment and monitoring and assurance. In this issue we look at risk assessment for the three areas (for the entire organization, for specific initiatives and policies, and for an external review from the perspective of those most protected by the regulator) in which a regulator is most likely to employ risk management.
As discussed in the last issue of Grey Areas, risk management follows a systematic cycle beginning with risk identification and then moving on to risk assessment, risk treatment and monitoring and assurance. In this issue we look at risk identification for three areas (for the entire organization, specific initiatives and policies and external review from the perspective of those most protected by the regulator) in which a regulator is most likely to employ risk management.
Formal risk management originated with insurers, spread to the banking sector, and now is employed by most large organizations and many small ones. Risk management is now used by many regulators.
Professional regulators must serve the public interest. That is their mission. However, when it comes to making rules (e.g., a by-law or regulation), courts have traditionally allowed regulators to make the rules the regulator deems best. There were only a few exceptions. For example, a rule could be struck down by the courts where it was unconstitutional (e.g., infringed on the freedom of expression), where it was unauthorized (e.g., the enabling legislation did not permit the regulator to regulate in that area), where it was enacted for an improper purpose (e.g., to limit competition) or where it was void for vagueness. Courts have studiously resisted examining the wisdom or merits of the rule itself. Until now.
Earlier this month the Ontario Human Rights Commission released its Policy on preventing discrimination based on mental health disabilities and addictions. This lengthy document provides comprehensive information about the Commission’s interpretation of the disability protections in the Human Rights Code. While the emphasis in the Policy is on housing, employment and services, the Policy explicitly recognizes that the same principles apply to professional regulators.
Earlier this month the Canadian Civil Liberties Association (CCLA) released its report on the use of police checks entitled: False Promises, Hidden Costs. While the report was written primarily from the perspective of the use of police background checks by employers and volunteer organizations, it has relevance for regulators in two distinct ways.
What is the role of regulators when their members are disruptive? That question sparked a lot of debate at a conference of regulators held earlier this month.
Is the golden age of self-regulation in Ontario coming to an end? A decade ago the province was cranking out new self-regulating professions at a rate of more than one per year. Legislation creating self-regulatory bodies for early childhood educators, trades, traditional Chinese medicine practitioners, kinesiologists, psychotherapists, naturopaths (who were already regulated under antiquated legislation) and homeopaths was enacted.
Last month’s Grey Areas article discussed how courts and human rights tribunals are increasingly reluctant to permit collateral proceedings. Applicants for registration and members are expected to raise human rights issues in the usual regulatory proceedings and not to bring a separate human rights complaint. There are some exceptions, however, such as where the validity of the enabling legislation or regulatory processes adopted by the regulator is in issue. Systemic discrimination complaints may still be available in some circumstances.
When the human rights system in Ontario was reformed in 2008, there were concerns from regulators that a new, alternative appeal for their decisions had just been created. Previously all complaints were screened by the Ontario Human Rights Commissions before any hearing. Often the Commission would decline to consider a human rights complaint against a regulator where there was an adequate alternative remedy available. Typically a complaint about a registration, complaints or disciplinary matter was diverted by the Commission back to the usual administrative law process. Under the new regime, the Ontario Human Rights Tribunal (the “Tribunal”) had very limited statutory authority to decline to deal with a complaint.
Every now and then there comes a case that has so many significant aspects to it one cannot determine which is the most important. The recent Ontario Divisional Court decision of Yazdanfar v. College of Physicians and Surgeons of Ontario is one such case. Dr. Yazdanfar appealed a discipline finding and order related to the tragic death of a real estate agent following liposuction treatment.
Earlier this month Steven Lewis, a popular health policy consultant, made a presentation at an international conference of regulators on the future of professional regulation.
Earlier this month the Ontario Legislature introduced comprehensive and innovative amendments to the enabling statute for the regulation of Ontario’s teachers and principals. These amendments flow from the recommendations made by retired Justice LeSage in his report commissioned by the College of Teachers.
Regulators know that they have to accommodate a disability or other protected human rights ground. However, the extent determining whether allegations should be referred to discipline for a formal hearing and possible sanction is never easy. While the referral itself does not, in itself, amount to a finding of misconduct nor does it impose any penalty, it initiates a formal hearing process that is difficult for all concerned.
Regulators know that they must accommodate applicants with disabilities. Typically this requires procedural accommodations to offer applicants a fair means of demonstrating their abilities (e.g., more time to complete a written examination for those who have a reading disability).
While discipline proceedings do not require the formality of a court hearing and while it is recognized that disciplinary tribunal members are not judges, a degree of formality is still required. At some point informality creates confusion. This principle was nicely illustrated in the recent case of Nanson v Saskatchewan College of Psychologists, 2013 SKQB 191.
It is difficult to believe that it has taken until 2013 for the Canadian courts to provide its first major decision on the telepractice of a profession (excluding some interesting securities cases). It has taken so long that even the term, telepractice, is now obsolete, since what we are really talking about now is practising a profession over the internet. And the guidance only addresses the easier side of the equation: the jurisdiction of regulators where the provider is in one jurisdiction and the client is in another jurisdiction.
Almost all regulatory bodies are provincial. Almost all statutory regulatory bodies have protected titles that non-members cannot use. Can the protection of those titles be compromised by organizations obtaining federal trade mark protection for the same words?
One of the most difficult tasks of a tribunal is making findings of credibility. Perhaps even more difficult is to then articulate reasons for those findings. Two recent decisions involving a Saskatchewan physician illustrate how to explain such findings and, also, how not to explain such findings.
Earlier this month the Ontario Office of the Fairness Commissioner (OFC) issued a report of her assessment of the registration practices of Ontario’s professional regulators. The report, entitled: “A Fair Way to Go”, provides the OFC’s assessment of the state of mobility for internationally trained professionals in Ontario after the OFC’s first five years of operation.