Challenging Responses to Changing Times
New Proposals for Occupational Regulation


Table of Contents

 

Introduction



Government's role in the economy is becoming increasingly questioned. In response to growing trends favouring deregulation, the Government of Newfoundland and Labrador has carried out an extensive review of all existing regulations to reduce or eliminate those inhibiting economic development. This review of the self-governing occupations is part of that process.

Government intervention in the regulation of occupations is justified as a way to protect the public from potential harm. As occupations grew and practitioners began to deliver services in this province statutory frameworks were established. Unfortunately there has never been a uniform or comprehensive policy to guide the creation of these frameworks and, as a result, many inconsistencies now exist.

This White Paper highlights the need to reconsider these statutory frameworks and the procedures which they have put in place. Chapter 1 contains proposals to replace the existing statutory hodgepodge with rational, comprehensive and consistent practices and procedures. Chapter 2 discusses the process used to determine whether, and what kind, of regulation might be necessary. This paper proceeds from the premise that occupations which are already self-governing should be allowed to operate freely as long as the public is protected. Chapter 3 suggests changes to promote public accountability to ensure the public has access to information about the self-governing occupations. Chapter 4 outlines a new disciplinary model and proposes the creation of a uniform board to provide an effective and cost-efficient discipline process for the self-governing occupations.

Comments on the proposals contained in this document from both members of the self-governing occupations and the general public are welcome. Everyone has a stake in the regulation of these occupational services. This White Paper offers an opportunity to provide your views regarding the current state of occupational regulation in this province and to influence the direction the future regulation of these services will take. All members of the self-governing occupations and the public are encouraged to provide written comments by January 31, 1997.

Comments should be forwarded to:

Deputy Minister
Department of Government Services and Lands
Confederation Building
P. O. Box 8700
St. John's, Newfoundland
A1B 4J6

Facsimile Number:

E-Mail address of the Deputy Minister::

(709) 729-4754

bwakeham@mapa.gov.nf.ca





CHAPTER 1
OCCUPATIONAL REGULATION IN THIS PROVINCE

Occupational regulation exists to protect the public. Regulation is needed when there is a substantial risk of harm to consumers if the service is performed improperly. To make sure quality services are offered to consumers government set appropriate standards through legislation. In effect, government is balancing the risk of harm to the public against a desire not to inhibit economic growth by intervening in a free market.

Government may regulate occupations in different ways. For example, it may decide to supervise the activity through establishing a special board or naming a public official to supervise the occupation; or it may require that those taking part in an occupation obtain a permit before beginning work. Allowing an occupation to be self-governing is another way of regulating.

An advantage of self-government is a reduced cost to taxpayers because expenses of regulation are borne by the occupation and recovered from practitioners. Self-governance also allows the members of an occupation to assume responsibility for their own activities. As well as extending a level of independence and prestige to an occupation, self-governance also extends privileges to individual practitioners, such as the ability to establish an independent fee structure for their services.

When authority is granted to establish some form of self-governance several powers have traditionally been included: the right to set practice standards and admit qualified practitioners and the right to discipline existing members. These powers must be exercised with great care given that self-governance contains a potential conflict of interest. The potential conflict arises because the occupation is regulated by a body composed for the most part of its own members, yet has the statutory duty of protecting the public. The conflict is between the public interest and the self-interest of the occupation itself.

Self-governing occupations usually have a governing council or licensing board which oversees the occupation's activities. In addition, standing committees are appointed, e.g., discipline. This board or council has traditionally been made up of practitioners elected from the membership, although outside, lay representatives have also been named to that body. Interest in involving non-members of the occupation in the governing body has increased in recent years. All members of the board or council, whether lay members or practitioners, are required to serve the public interest.

SELF-GOVERNANCE TODAY

In Newfoundland and Labrador 29 statutes exist to regulate 27 self-governing occupations. Self-governance was first granted to the Law Society of Newfoundland in 1834 and has since been extended, in various forms, to a range of occupations. Some occupations are regulated by more than one statute while others have a limited form of self-governance. Appendix A lists these self-governing occupations and their applicable legislation.

Newfoundland and Labrador has no policy guidelines to apply to occupations seeking self-governance. There is no established procedure to assess requests for self-governance and no criteria to assess whether self-governance should be granted. Ministerial responsibility is shared between seven departments, with Health and Government Services and Lands having the largest portions. From a public perspective the lack of uniformity in the complaint process and the confusion it creates for complainants is a major problem created by the variety of statutes governing the occupations. Appendix B outlines the occupations considered to be self-governing and the government department to which they are responsible.

WHY REVIEW IS NEEDED

There is a need to re-examine the system which was intended to protect the public but which is arguably not doing this today. Government hopes that this White Paper will provide an opportunity for all concerned parties to review these issues and resolve the problems that have been identified. These problems include:

Lay representatives are an especially important aspect of public accountability.

Such representatives are in a unique position to present the views of the non-practitioner to the governing or licensing body. They may be drawn from consumers, from the general public, or from members of related but separate occupations. Government takes the position that the principles of gender equity must be followed in the appointment of these lay representatives. Presently the vast majority of the 27 self-governing occupations have the statutory authority to appoint lay representatives as shown in Appendix C. Although many have been appointing such representatives in recent years, government believes this practice should extend to all the self-governing occupations.

CHAPTER 2
REGULATING NEW OCCUPATIONS

Although occupations change in time fundamental issues remain the same. New occupations have emerged, especially in the health care field, and have sought self-governance. Government must be satisfied self-governance is likely to prevent harm.. There is no established process to evaluate the merits of a request for self-governance. To fill this gap government has developed policy applying to future requests for self-governing status.

Any proposal to extend self-governance will be reviewed to make certain the public is protected. Government must be satisfied that an occupation is willing and has the resources necessary to do this. At the same time the province also wants to be fair to new occupations seeking self-governance. Government believes the proposals put forth will do this by giving equal access to government, providing occupations with the assessment standards, and creating a process easily understood. Written submissions requesting self-governing status will be evaluated against the proposed standards by the department responsible for that occupation. The criteria for self-governance are listed in Appendix D.

DECIDING TO REGULATE

The basic three-step process is set out in the adjacent flow chart. A reason to consider regulation or self-government for an occupation must first exist. Government must then decide if regulation is necessary for public safety and, if it is, determine which form of regulation could best protect the public.

FLOW CHART

PROCESSES FOR DETERMINING WHETHER REGULATION IS INDICATED

STEP 1

Source/Instigation

STEP 2

Threshold Questions

A. Is there a sufficient risk of harm to the public?

To demonstrate harm there must be reasonable evidence to support action



B. When can intervention be justified?

Would the risk of harm to the public be minimized by intervention?



C. Does the benefit outweigh the cost of intervention?

Consider the perspectives of the





Threshold Questions (cont'd)

Conclusion

If intervention is indicated, what are the alternatives to Government regulation?



If regulation is indicated, move to the next phase of the inquiry

STEP 3

Consider the Structure of Regulation

A. What type of intervention is required?

Level I   /Licensure

Level II  /Title protection

Level III Scope of Practice (exclusive)



B. How should this regulation be achieved?



Step One:

The process may be commenced in a number of ways. A group seeking regulation may approach government, for example, or an issue may arise in the public domain requiring a review of self-government. The issue could also be identified within the public service and require a response by government.

Step Two:

In step two several threshold questions must be answered.

Is there a risk of harm to the public?

Government must be shown there is a threat to public health or a detriment to the economy.

When can intervention be justified?

Intervention is justified on the basis of protecting the public. The requirements in place to protect the public will be reviewed to establish whether they are sufficient to minimize the risk of harm to the public.

Does the benefit outweigh the cost of intervention?

A cost/benefit analysis must be used to consider the effect on the public at large, government itself, and consumers. Once government is satisfied that intervention is required the next phase can begin.

Step Three:

In step three the structure of regulation must be considered. Factors to use in deciding which structure to select include the risk of harm to the public, the nature of the service delivered, and the qualifications of practitioners. Occupations must understand that self-governance will not be extended lightly but, rather, is a privilege carrying great responsibility. The government will consider extending self-governance only when the criteria are satisfactorily met. Once the department completes its analysis, if it finds self-governance is indicated Cabinet will assess the recommendation and review its implications before final decisions are made.


CRITERIA FOR SELF-GOVERNANCE


(Highlights)

Assumptions:

The Nature of Self-Governance: An Inherent Conflict:

Acceptance of Responsibility:

The Occupational Body (the "Proponent")

Ability to Discharge Public Protection Responsibilities

Willingness to act in the public interest

Public Accountability

Standards

CHAPTER 3
IMPROVING PUBLIC ACCOUNTABILITY

Policy development in the area of occupational regulation is long overdue. There is a need to eliminate inconsistencies in the statutes permitting self-governance and to introduce uniform and enforceable measures for public accountability. Government proposes that this policy be applied to new and existing occupations to ensure these goals are met.

There is no plan to establish a central office to co-ordinate and monitor self-governing bodies. A single policy which is consistently applied throughout government ought to be able to do this without creating another administrative structure. A policy promoting consistency, equal access, and fairness and implemented by the public service is able to meet these objectives without further cost to the taxpayer.

SELF-GOVERNING REGIMES

The consensus emerging across Canada today discourages granting an exclusive right to deliver a service to members of a certain group. Granting an exclusive right to deliver a service creates a monopoly. This is not desirable from a consumer's perspective. Government is reluctant to create further monopolies through establishing exclusive practice areas unless it is convinced this is absolutely necessary for public protection.

For now government would prefer a process of certification or title protection when the need for regulation of an occupation has been determined. Protecting a title ensures that practitioners are trained and qualified in that field. This will be sufficient in most instances to minimize the risk of harm and is a less intrusive foray into the marketplace. Unless there is a serious risk of harm government intends to use a certification process, with title protection, rather than allow further exclusive scopes of practice.

PROTECTING PUBLIC INTERESTS

Self-governing occupations are required by law to protect the public interest. Public trust in the occupation and the discipline process is essential to self-governance. Government believes the most effective way of achieving trust and eliminating the potential conflict of interest is to separate the governing council and licensing function from the association function. This will be done by requiring that the association incorporate and register under the provincial Corporations Act. This would make information regarding the organizational structure conveniently available to the public. Currently, there is little clarity as to what ought be contained in by-laws and regulations. The former relate to internal matters of the association.

A public statute would provide for the public functions, such as the qualifications for entry. Regulations made under the statute ought to be matters which are concerned with protection of the public. These regulations ought to be deemed subordinate legislation and therefore published in the Newfoundland Gazette.

Government has also proposed several measures to strengthen public accountability of the profession. These include the following:

Uniform procedures to make sure that the accountability process is working and is perceived to be working are critical when occupations are self-regulating. Government believes public accountability is an essential part of self-governance. These reforms are designed to enhance this accountability by increasing the role played by the public in occupational regulation.

CHAPTER 4
NEW DISCIPLINARY PROCEDURES

The ability of a governing body to discipline for incompetence or unethical behaviour is the ultimate power to maintain control over the membership of an occupation. Discipline is a means to gain compliance with practice standards set down in a Code of Ethics for an occupation. Appearing before peers for unethical or unprofessional conduct is a significant deterrent for practitioners and protection for the public. Moreover, if a practitioner is found to have committed such acts the sanctions imposed, such as suspension or expulsion, could result in humiliation or economic hardship for a practitioner.

PROBLEMS OF INCONSISTENCY

Disciplinary procedures in Newfoundland's self-governing occupations contain at least five different processes as noted in Appendix E. Many procedures are stated generally and specific steps are not clearly outlined. This problem exists because the regimes were established at different periods and reflected the standards of that era.

These inconsistencies are a problem for members of the public and for the practitioners of an occupation. For members of the public there is no single disciplinary process and no one source outlining the process to be followed. The rights of complainants and the means to exercise these rights are unclear. For practitioners there has to be a way to control members who are not adhering to appropriate ethical standards and consequently exposing all members to significant liability. For both purposes an effective disciplinary process is essential if self-government is to operate smoothly and efficiently. The passage of the Canadian Charter of Rights and Freedoms on April 17, 1982 has only heightened the need for an effective disciplinary process.

POLICY CONSIDERATIONS

Many Canadian studies have reviewed public policy surrounding self-governing professions. Those studies have recommended that complaints investigation be separated from disciplinary hearings; that issues of bias be addressed; and that fair and efficient methods for review and appeal of disciplinary decisions be put in place.

Currently there is a trend across Canada to review disciplinary procedures in relation to their original objectives. Government is determined to keep pace with these reforms in other jurisdictions and to ensure the laws in Newfoundland and Labrador meet their original, public protection, objectives.

The province's proposals will enhance public protection and increase accountability without imposing significant additional expenses on the occupation. The appointment of lay representatives to the governing council and discipline body and the requirement of open discipline hearings gives the public much better access to an occupation's operations. Filing an annual report and a list of members and the disciplinary actions taken in a public place, the Registry of Companies, makes the material they contain more accessible. The discipline rules published as subordinate legislation enhances public accountability. Changes to the discipline procedure itself which require a report on the status of a complaint be given to a complainant are important. As well, the available remedies for improper actions will be increased from the traditional ones of either revoking or suspending a practitioner's certification to practice. There will be more flexibility to impose a sanction which fits the circumstances.

In general terms the principle of openness will apply to the new disciplinary model. Government believes this is necessary if the goal of public accountability is to be taken seriously. The self-regulating occupations ought to be able to satisfy these standards which seek to balance the public's right to know with personal privacy. The flow chart on the accompanying page illustrates how the discipline procedure will work.

How the uniform disciplinary procedure works

The proposed uniform model of disciplinary procedure is complaint-driven. The complaint may come from a client or from fellow members of the occupation. Generally complaints will be made in writing to the registrar or the governing body of the occupation. Members of the public who need special help in compiling their complaint form should be given this assistance.

Conduct and Complaints Committee

After a complaint has been filed the registrar will refer the complaint to a standing Conduct and Complaints Committee. This committee has the power to review and either accept or reject complaints but its decisions can be reviewed by the governing body. Before the committee decision is made the practitioner will be told of the complaint and given a chance to respond. The committee will be made up of practitioners and lay representatives in a two-thirds to one-third ratio.

Investigation

If there is a potential for disciplinary action when a complaint is accepted the Conducts and Complaints Committee will refer the matter to an investigation team consisting of the registrar and another designated member. When a report is received the committee will then decide whether to dismiss the complaint at this stage, refer the matter to mediation between the parties, or refer the matter to a second standing committee, the Discipline Committee. Uniform Disciplinary Procedure and Uniform Diciplinary Board

Hearing

The Discipline Committee will conduct a hearing in accordance with established legal principles embodied in the rules of natural justice. The powers available through the Public Inquiries Act would apply to members. The panel will be comprised of practitioners and a lay representative. These rules will include the right of the practitioner to know full details of the accusation; the right of the complainant to have an opportunity to state a case; and the duty of the tribunal to act in good faith. Disclosure of material to the complainant is also required unless the privacy of third parties is jeopardized.

Imposing a Sanction

Upon a finding of misconduct, the discipline panel will not be limited to suspension or revocation of a certificate of practice. Rather the sanction could involve a range of sanctions (e.g., suspension of practice for a defined period, undertaking continuing education, waiving fees for service rendered which was the subject of the complaint). The ability for the occupation to recover costs associated with the disciplinary process upon a finding of misconduct is one which is not now available to all groups. This ought to be rectified.

Appeal

Complainants have the right to be represented by counsel and a right to appeal a decision directly to the Newfoundland Supreme Court of Appeal. The practitioner and the governing body also have this right of appeal.

UNIFORM DISCIPLINARY BOARD

An essential element in the new disciplinary procedure is the establishment of a uniform disciplinary board. This is a significant step because it continues to grant occupations the ability to Uniform Disciplinary Procedure discipline their own members, while at the same time it resolves the problems identified above in the present occupational discipline process.

Government believes this model will work. It will leave the responsibility for conducting investigations and reviews with the self-governing occupation. At the same time, it answers the need for public accountability while allowing participation by the occupation. Setting up the board will provide a consistent approach to discipline issues. Smaller occupations would have access to this board and be subject to its decisions to the same extent as larger occupations. This would save money and time for these smaller occupations because they would not have to create a special disciplinary framework, while it would not cost larger occupations any additional funds because they already have expenses associated with a disciplinary procedure. Government believes that the operation of the board would result in lowered costs because occupations would only use the service when they needed to do so. Because of the volume of work undertaken by the board a body of expertise in occupational discipline, including Charter concerns, would also be created.

OPERATING THE BOARD

Government expects the board to operate in a relatively straightforward manner as outlined in the accompanying flow chart. The Conduct and Complaints Committee of an occupation would refer a case to the board after deciding that a hearing is required. The committee would ask for a hearing and would identify two members, one lay and one practitioner, to serve on the discipline panel. These nominees would represent the occupation on the discipline panel which would be chaired by a government-appointed Commissioner. Commission staff will ensure the hearing is conducted in accordance with the uniform disciplinary procedure.

Government proposes that the board would operate independent of the occupations but be funded by all the self-governing bodies. The Commissioner would be reimbursed for expenses. The cost of disciplinary hearings would be paid by the occupation which sought the services of the board. Consequently occupations would be conscious of these expenses and seek to limit them by promoting ethical and professional standards among their members and avoid the need for costly hearings.

In the end government believes that the public and the occupations can benefit from the creation of a uniform disciplinary code. There is increasing pressure on the self-governing occupations to involve the public in disciplinary matters. Although some additional cost will be involved because of this process, the province believes the issue is important and must be pursued. Establishing the uniform disciplinary board will require the co-operation of the self-governing occupations. Government believes this board is the best solution to the problems posed by disciplinary concerns within those occupations. Self-governing occupations are encouraged to examine the proposals contained in this White Paper and to participate in public consultations on them. Changing times demand challenging responses.


APPENDICES

APPENDIX A

SELF-GOVERNING OCCUPATIONS
LEGISLATION OF NEWFOUNDLAND AND LABRADOR

1. Agrologists Act, RSN 1990, c.A-7

2. Architects Act, RSN 1990, c.A-15

3. Certified General Accountants, RSN 1990, c.C-6

4. Chartered Accountants Act, RSN 1990, c.C-9; am. SN 1995, c.A-5.1 (not in force)

5. Chiropractors Act, RSN 1990, c.C-14; am. SN 1993, c.47

6. Dental Act, RSN 1990, c.D-6

7. Denturists Act, RSN 1990, c.D-7

8. Dieticians Act, RSN 1990, c.D-23

9. Dispensing Opticians Act, RSN 1990, c.D-25

10. Embalmers and Funeral Directors Act, RSN 1990, c.E-7

11. Engineers and Geoscientists Act, RSN 1990, c.E-12

12. Hearing Aid Dealers Act, RSN 1990, c.H-2; am. SN 1991, c.24

13. Land Surveyors 1991 Act, SN 1991, c.L-6

14. Law Society Act, RSN 1990, c.L-9; am. SN 1991, c.11; SN 1993, c.25

15. Management Accountants Act, RSN 1990, c.M-1

16. Medical Act, RSN 1990, c.M-4; SN 1992, c.34

17. Midwifery Act, RSN 1990, c.M-11

18. Nursing Assistants Act, RSN 1990, c.N-6; am. SN 1993, c.48

19. Occupational Therapists Act, RSN 1990, c.O-4

20. Optometry Act, RSN 1990, c.0-7; am. SN 1991, c.25

21. Pharmaceutical Association Act,1994, SN 1994, c.P-12.1

22. Physiotherapy Act, RSN 1990, c.P-13

23. Psychologists Act, RSN 1990, c.P-34

24. Public Accountancy Act, RSN 1990, c.P-35, am. SN 1996, c.12, am. SN 1996 c.14

25. Registered Nurses Act, RSN 1990, c.R-9; am. SN 1992, c.28

26. Social Workers' Association Act, SN 1992, c.S-18.1

27. Veterinary Medical Act, RSN 1990, c.V-4

APPENDIX B

SELF-GOVERNING OCCUPATIONS IN NEWFOUNDLAND AND LABRADOR
REPORTING RESPONSIBILITY

1. Agrologists (Forest Resources and Agrifoods)

2. Architects (Government Services and Lands)

3. Certified General Accountants (Government Services and Lands)

4. Chartered Accountants (Government Services and Lands)

5. Chiropractors (Health)

6. Dentists (Health)

7. Denturists (Health)

8. Dieticians (Health)

9. Dispensing Opticians (Health)

10. Embalmers & Funeral Directors (Health)

11. Engineers & Geoscientists (Government Services and Lands)

12. Hearing Aid Dealers (Health)

13. Land Surveyors (Government Services & Lands)

14. Lawyers (Justice)

15. Management Accountants (Government Services & Lands)

16. Midwives (Health)

17. Nursing Assistants (Health)

18. Occupational Therapists (Health)

19. Optometrists (Health)

20. Pharmacists (Health)

21. Physicians (Health)

22. Physiotherapists (Health)

23. Psychologists (Health)

24. Public Accountants ( Government Services & Lands)

25. Registered Nurses (Health)

26. Social Workers (Social Services)

27. Veterinarians (Forest Resources and Agrifoods)



APPENDIX C

LAY REPRESENTATIVES
STATUTES OF NEWFOUNDLAND AND LABRADOR

Provisions Authorizing Appointments of Lay Representatives (Regulated Occupations)

Occupations Reps. Authorized

Agrologists 0

Architects 0

Certified Public Accountants 0 (merged with the Chartered Accountants)

Dieticians

Management Accountants 0 (if lay representatives, authorized by by-laws)

Midwifery Act (currently, Board not constituted) 0

Physiotherapists 0

Veterinarians 0

Chartered Accountants 1 (has one representative authorized by by-laws)

Dental Act 1

Dispensing Opticians 1

Engineers and Geoscientists 1

Hearing Aid Dealers 1

Registered Nursing Assistants 1

Occupational Therapists 1

Optometrists 1

Psychologists 1

Social Workers 1

Chiropractors 2

Lawyers 2

Physicians 2

Certified General Accountants 3

Denturists 3

Embalmers and Funeral Directors 3

Pharmacists 3

Public Accountants 3

APPENDIX D

CRITERIA FOR SELF-GOVERNANCE

Self-governance is the result of the delegation of authority by Government to an occupation to regulate practice of a service and its practitioners. The extension of the status is not given lightly by Government. The privilege of self-governance is accompanied by responsibilities. The occupation is accountable for the powers which have been bestowed by Government to benefit the public interest. Those occupations awarded self-governance will be those whose services conform to Levels II or III of the Flow Chart at page 8 of Chapter 2.

Assumptions:

The Nature of Self-Governance: An Inherent Conflict:

Separation of Functions:

Acceptance of Responsibility:

The Occupational Body (the "Proponent")

Ability to Discharge Public Protection Responsibilities

Willingness to act in the public interest

Public Accountability

Principle of Openness

Standards


APPENDIX E

Categorization of Disciplinary Procedures in the Statute Law
of
Newfoundland and Labrador

It is difficult to categorize the variations in the statutes regulating the occupations, however, there are broad classifications which can be made upon reviewing the statutes extending self-governance.

Category A

The Governing Council is responsible for the investigation, hearing and decision-making with respect to a complaint received relating to a practitioner. The Council then has the power to impose a sanction. This is the nature of the disciplinary process authorized by the following:

Category B

The Licensing Board is responsible for investigation, hearing and decision-making as well as the imposition of a sanction. The statutes with this type of procedure are:

Category C

A complaint is referred to a disciplinary body for investigation and a recommendation to Council which makes the final decision and imposes a sanction.

Category D

The complaint is referred to mediation and if there is no settlement, referred to a discipline committee. The discipline committee conducts a hearing and reports to the Council its findings and offers recommendations. The final determination and imposition of a sanction is the responsibility of the Council.

Land Surveyors Act, S.N. 1991, c. 37
Social Workers Act, S.N. 1993, c. S-18.1

A variation of this procedure is found in the Engineers and Geoscientists Act, R.S.N. 1990, c. E-12 in which the Discipline Committee may make the final determination and impose a sanction on the practitioner.

Category E Other variations

A Board appointed by Government which is composed of officials and representatives of interested organizations hears the matter and may impose a suspension or cancellation of the practitioner's right to practice.

The Management Accountants Act, R.S.N. 1990, c. M-1 does not authorize a disciplinary process although it is evident by Section 17 of the Act, there is a process contemplated.