The Inside Story: What does regulated actually mean? Part 2

When we last left off in part one of this two-part article (in the January/February edition of The Inside Story), our examination of what “regulated” in regulated health professional means revealed a self-regulation model where health professionals police themselves. We also learned that at the heart of this model is the stated goal of serving and protecting the public interest.

However, everywhere we turn—news stories, podcasts, documentaries—there are factual accounts of regulated health professionals (RHPs) who don’t seem to be working in the public interest. This got us thinking, does the fact that certain health professionals are regulated give us a false sense of security and safety? Let’s take a look at how well the regulators (typically called colleges) are doing at fulfilling their mandate to serve and protect the public.

Protect the public by shielding against harm

To recap from part one, the philosophy of the provincial governments is that any profession that could put the public at risk should be regulated. So once a profession is regulated, the mandate of each profession’s college is to serve and protect the public. Then if an RHP is putting the public at risk by not providing services in a safe, professional, or ethical manner, it’s up to their college to investigate and, when necessary, discipline the RHP. Examples of discipline include supervised practice, restrictions on what or how they practice, and suspension or removal of the right to practice. So just how effective are the colleges at policing their members and in turn, how good are they at protecting the public?

Reactive, not proactive

The main way that an investigation of an RHP is triggered is by a complaint, which could come from a variety of sources, such as patients, employers, or fellow RHPs. But this is reactive, rather than proactive; what if there are no complaints? For example:

• Patients may not feel empowered, or are fearful about making complaints. A study by McMaster University found that those less likely to make a complaint with a college are significantly older, disabled, and/or live in an economically deprived area or rural community.¹
• Employers of health professionals may also shy away from lodging complaints as a way to avoid human resources/ union issues or to avoid bad publicity.

Self regulation may in fact deter both of these avenues for complaints. Both groups may perceive a power imbalance— that the colleges “take care of their own” at the detriment of the complainant. Ironically, fellow RHPs—another avenue for complaints—could perceive the opposite. They might be hesitant to speak up because they feel it’s disloyal to colleagues—and that it could end up negatively impacting their own careers. 

Although mainly reactive, the colleges do some quality assurance activities that are more proactive in nature. For example, the College of Physiotherapists of Ontario conducts practice assessments where members’ actions are assessed against practice standards. However, the commitment is that members will be selected for assessment every 10 to 11 years.² Sounds like a long time for the public to potentially be at risk. Because self regulation relies on the professions themselves to determine the credentials the RHP must have, could this lead to assumptions that quality is pretty much a given so assessment is not a priority? Or perhaps the way the self-regulation model is funded means there just aren’t enough resources to conduct more regular assessments.

This touches another criticism of the self-regulation model as reported by the McMaster University study that “financing and funding of oversight bodies are not explicitly designed to optimize public-protection efforts.”³ Colleges are financed by fees determined by the colleges and paid by their RHP members. This creates inconsistencies between professions, so colleges representing higher-earning professions—or a lot of members—could end up with more funds. In turn, this could potentially impact the college’s ability to conduct more (or fewer) quality assurance activities.

So for argument’s sake, let’s assume that there is a complaint; could self regulation lead to a conflict of interest whereby the college doesn’t take action, or doesn’t take action quickly because of self-interest like avoiding bad publicity? And even when a college investigates a complaint, what if discipline is essentially just a “slap on the wrist”? As a result, even when there is a complaint, could a health professional go on putting the public at risk indefinitely?

Falling through the cracks Although an extreme example of harm done, let’s take a look at Elizabeth Wettlaufer, the Woodstock, Ontario nurse who is currently serving a life sentence for the murder of eight patients, attempted murders of four others, and aggravated assaults of two more. Her crimes went undetected until she confessed in the fall of 2016.⁴ A public inquiry investigating how she was able to get away with the murders reports that ten of a total of 44 instances of making medication errors—and receiving discipline or warnings for incompetenc —were reported to the College of Nurses of Ontario (CNO). The CNO said that this was not enough to spark an investigation regarding whether Wettlaufer was fit to continue practising.⁵

However, the college was involved back in 1995. Wettlaufer was fired from a hospital nursing position after she was caught high on drugs that she admitted to stealing on the overnight shift. The nurses’ union grieved the firing and her employment record was amended to state that she had resigned of her own accord. The CNO placed restrictions on her licence for a year, and Wettlaufer agreed not to abuse any substances and to get help.⁶

Fast forward nine years to 2014—after having already killed seven of her eight murder victims—Wettlaufer was fired again, this time from a nursing home for giving a patient insulin meant for another patient. The home notified the CNO of the firing. The CNO didn’t investigate Wettlaufer who went on to get hired at another nursing home, murdering another person and harming two others.⁷

Fortunately, there are examples of when complaints trigger thorough investigations and the resulting disciplinary actions seem appropriate for the magnitude of the issue. And things seem to be improving regarding what actions colleges are required to take by law.⁸

Crime and punishment

Given today’s increasingly low tolerance and heightened vigilance regarding misconduct by professionals—health or otherwise—especially regarding issues of a sexual nature, it’s hard to understand why colleges don’t necessarily notify the police and/or do not revoke the RHP’s licence.

Case in point: The Ontario pediatrician who had a history of inappropriate sexual behaviour dating back to 1991 with discipline that only included things like short term licence suspension and having to post a sign in the waiting room notifying patients that he can only see female patients and female parents/ caregivers of patients in the presence of another registered health professional.¹²

Not that horrible cases have any true upside, but cases like this did help prompt change. In May 2018, amendments to the Ontario government’s Protecting Patients Act, 2017 came into effect which, among other things, expands the list of sexual abuse acts that require mandatory revocation of the RHP’s licence by a panel of their college’s discipline committee. In addition, RHPs must self-report any criminal activities to the college as well as whether they belong to other regulatory bodies—inside or outside of Ontario— and if they have any professional misconduct findings against them by another body.¹³

So continuing on with our analysis, let’s assume that the colleges are in fact protecting the public. However, the mandate of the self-regulation model is not just to protect the public, but also to serve the public interest. How well are the colleges doing at serving the public by doing something good, ideally positively impacting health outcomes?

Not to just protect, but also to serve the public interest…

Regarding serving the public, each RHP has a scope of practice, which refers to the rules, regulations, and boundaries within which a qualified health professional with appropriate training, knowledge, and experience may practise in an area of health care.¹⁷ To become regulated (as discussed in part one), the scope of practice is defined by each profession, which is then approved by the government. But just because the profession says it can do certain activities or make certain types of decisions, should it be doing them?

For example, some Ontario naturopaths are now offering what are being referred to as “pampered Pap tests.” Pampered in that prior to the physical exam, in addition to having the naturopath’s undivided attention for questions and concerns, the patient is allowed to spend 10-20 minutes meditating and relaxing like they would at a spa. Then post-exam, the patient receives a cup of tea and possibly even a hand massage. At a cost of approximately $100, naturopaths offering this service say that all this helps put patients at ease.¹⁸ Although performing Pap tests is within the scope of practice of naturopaths in Ontario, the medical community is concerned that the “pampered” version is not in the public’s  interest. For example, when a Pap test is done by a doctor or nurse practitioner:

• Patients also receive a thorough health assessment that goes beyond just the Pap test—an assessment that’s outside a naturopath’s scope of practice.
• There is continuity of care because, based on the test results, doctors and nurse practitioners can diagnose and provide treatment; not so for naturopaths, all they can do is the test.
• Any necessary referrals are possible, for example, if needed, the doctor or nurse practitioner can refer the patient to a specialist, but no referrals can be made if the test is done by a naturopath.

So if a main goal of self-regulation is to serve the public, aren’t services that don’t necessarily improve health outcomes a waste of time, energy—and money? Whether it’s publicly funded health care or health benefit dollars, why spend on services that don’t work? Increasingly scarce funds make it more important than ever that spending is reserved for only evidence-based services. However, figuring out what is truly evidence-based is getter harder than ever.

Misinformation overload

Today, the internet is typically the “go to” for health information. On one hand, patients are more informed than ever, but on the other hand, they may also be more confused. A recent survey found that 59% of the public are “not sure what is true and what is not.”¹⁹ Similarly, another study found that only 27% of respondents say they are “very confident that they can tell when a news source is reporting factual news,” and 58% feel that it is “harder rather than easier to be informed today due to the plethora of information and news sources available.”²⁰

Muddying the ability to accurately assess information is the use of technical scientific language. But here’s the catch, many so-called “scientific interventions” referenced are not backed by science. RHPs appear to be using scientific lingo to help legitimize their services.

Unsubstantiated scientific claims are definitely not in the public’s best interest on many levels. Like the experience of the Ontario mother who feels she was duped out of $5,000 when she took her son to a chiropractor who claimed treatments could “correct his autism.”²¹ Believing claims that have no scientific backing can also lead to dangerous decisions. For example, a study found that 40% of respondents believe that there are alternative therapies that can effectively cure cancer when there is no evidence supporting this. To the contrary, research shows that using alternative treatments for cancer is associated with poorer outcomes and survival rates.²²

From the colleges’ perspective, making claims in advertising that are outside the profession’s scope of practice is a definite “no no.” When alerted to misinformation, the college will typically take action— but again, this is usually more reactive than proactive. Maybe limited resources are to blame for not being more proactive, or worse, critics of self-regulation might say that the colleges are simply turning a blind eye.

Keep self-regulation under the microscope

So to come full circle, how well is the self-regulation model doing at serving and protecting the public? You be the judge, but our vote would be that Canada be open to change, namely more robust oversight from outside the profession. Going back to the Globe and Mail article that sparked this two-part series—and as discussed in part one about changes in other countries—we’d suggest following suit. We could use more independent oversight to achieve more objectivity and less potential conflict of interest, and a model that is national—so more consistency across regions and across professions.