Professional Regulation: The Political Winds are Blowing

Field Law
Contact

Field Law

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 (HPAin 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. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Field Law | Attorney Advertising

Written by:

Field Law
Contact
more
less

Field Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.