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See #20 on the list. The "self-regulatory model" of industry oversight is dying; to be replaced by a "more accountable system." #MQCC #iQMS™
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Great list of 20 key points in professional regulation! https://twitter.com/SMLLawToronto/ (https://www.sml-law.com/wp-content/uploads/2017/06/Greyar217.pdf)_
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please contact: Richard Steinecke, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4, Tel: 416-626-6897 Fax: 416-593-7867,
E-Mail: rsteinecke@sml-law.com
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Twenty Things We Have Learned in
Twenty Years
by Julie Maciura and Richard Steinecke
June 2017 - No. 217
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.
1. You can never say "public interest" too often.
The only reason regulators exist is to serve the
public interest. Some members of the public
will assume that regulators protect their own.
Even the profession itself, which elects the
majority of their Council or Board members,
sometimes get this foundational concept
confused. It is prudent to constantly remind
oneself of one's mission.
2. The public interest means more than public
safety. While the physical and emotional
safety of patients is important, unethical or
dishonest conduct is also extremely harmful.
In some ways, intentional acts are more
destructive than honest mistakes.
3. A professional regulator's public interest may
be different than someone else's public
interest. Regulators do not have to solve all of
the world's problems. And they should not
usurp the role of government in trying to make
societal-level policy decisions, recent
examples being the medical assistance in
dying and cannabis issues.
4. Having said that, regulators should be part of
the solution. This has been illustrated by the
role that some regulators have played in
enhancing labour mobility. Regulators have a
unique perspective and expertise to bring to
many issues such as the flow of labour across
the country and internationally.
5. Be open-minded. Even fundamental "truths"
change. For example, the concept that the
public should not be informed about
significant complaint outcomes because no
“finding” of wrongdoing has been made is
now “old thinking”. The public today expects
to have access to information that is relevant
to their choice of practitioner.
6. Be transparent. Regulators are increasingly
posting their processes and decision-making
criteria online. While sometimes this permits
some to tailor their submissions to the
regulator (e.g., avoiding providing original
documents for registration and providing less
revealing alternative sources of information),
overall it helps make for a more efficient
process when the relevant information is
provided the first time.
7. Legislation is slow. Regulators constantly
struggle with obsolete provisions in statute
and even in regulations. They are constantly
engineering work-arounds such as publishing
standards and guidelines. Trouble brews when
this is not possible, such as when statutory
confidentiality provisions are inconsistent
with current societal expectations of access to
information.
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8. Court decisions are not immutable. Rigidly
relying on old cases that no longer reflect
public and judicial thinking is a prescription
for disappointment. It is hard to believe that at
one time the leading case on disclosure in
discipline hearings explicitly said that witness
statements did not need to be provided to
practitioners.
9. Regulators cannot do it alone. Today most
professions practice in teams or in settings
where others share responsibilities. Regulating
just the individuals without considering those
with whom practitioners work or the practice
environment itself is ineffective. Regulators,
as well as practitioners, must learn how to
collaborate in order to achieve their mandate.
10. It is difficult to be “too fair” to the
practitioner. Giving notice of the regulator's
concerns and offering an opportunity to
comment not only avoids judicial review, it
results in better decision making. Being fair
sometimes requires repeating the submissions
process as new information or new concerns
arise.
11. There are always exceptions. Sometimes the
risk of harm to innocent third parties or clients
requires regulators to withhold certain
information at least for a while (e.g., the
contact information of a vulnerable informant)
or to oppose production orders (e.g., of the
counselling records of a complainant). Rigidly
following established procedures without
considering their purpose can be inappropriate
at times.
12. Complainants also need to be considered.
Since the practitioner's livelihood is at stake,
fairness to them is proper and necessary.
However, this should not be at the expense of
re-victimizing the complainant, particularly in
cases where the alleged misconduct relates to
their vulnerability (e.g., sexual abuse cases).
13. Social science helps. We all know about the
frailty of memory because of studies on the
issue. Similarly, social science has taught us
important lessons on the nature and impact of
sexual abuse that has fundamentally altered
how regulators approach those issues. More
recently, an increased interest in cognitive
fallacies has provided invaluable information
on how regulators can assist practitioners to
make better decisions. Of course the risk of
relying on pseudo-science must be carefully
considered.
14. Most practitioners are competent and ethical.
In our experience, the vast majority of
practitioners take pride in their
professionalism, diligently serve their clients
and work well with their colleagues. To
remain relevant and effective, regulators need
to design their programs with this reality in
mind (see "proactive regulation" below).
15. A few practitioners are deceptive. Fortunately
this is not common. However, the schemes of
rogue practitioners can be elaborate, creative
and persistent. Regrettably, this means that
regulators must be sceptical of the initial
explanations offered by some practitioners in
response to complaints or concerns.
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Sometimes an explanation doesn’t make sense
for good reason.
16. Proactive regulation matters. Focusing on
complaints (i.e., reactive regulation) means
that the regulator's message to practitioners is
"do the bare minimum and you will be fine".
Whereas the regulator's message when
administering continuing professional
development, inspection, and quality
assurance programs is "excellence is
important".
17. Professional buy-in matters. Unless the
regulator has the respect of the profession, its
members will not cooperate with
investigators, report wrongdoing by peers, act
as expert witnesses or serve on committees. A
regulator cannot be effective without the
widespread assistance of practitioners. Of
course, the regulator must always be diligent
against being co-opted by the profession it is
supposed to govern.
18. Regulators tend to attract the best and the
brightest. Most people who serve on the staff,
Councils or Boards and committees of
regulators are exceptional professional and
community leaders. In our observation, they
tend to have excellent track records of public
service in various organizations and they want
to make a positive difference.
19. One dysfunctional person can disrupt an
entire organization. While rare, we have seen
one individual with a strong personal agenda,
or an unrelenting personality, consume all of
the time and energy of the organization such
that little else can be accomplished. In these
cases, good people leave the organization
rather than engage in constant conflict and the
reputation of the regulator can be damaged for
years to come.
20. Professional self-regulation may be
disappearing. This regulatory model has been
replaced in much of the rest of the world.
Even in Canada the model has been adapted to
provide for greater accountability and is under
active reconsideration in many places.
Regulators must constantly prove themselves
worthy of the task. That was not always the
case.
It is a privilege to work in this field. One is on the
side of truth and justice, working with great people
achieving important things. We cannot think of a
better practice area. We thank everyone with whom
we have had contact these past twenty years.status/877549358849437698
