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The Inside Story: What does regulated actually mean?

March 13, 2019

WE RELY ON REGULATED HEALTH CARE PROFESSIONALS FOR PUBLIC SAFETY AND EFFECTIVE SERVICES... BUT WHAT DOES ‘REGULATED’ ACTUALLY MEAN?

Just like an earworm—when you get a song stuck in your head that just won’t leave—we’ve got the recent Globe and Mail investigative report about the regulation of chiropractors in Canada stuck in our head… and stuck big time. Is it trying to tell us something?

As you may recall from our coverage of the Globe’s November 1, 2018, article in the December edition of The Inside Story, for over 10 years the College of Chiropractors of Ontario’s leadership included vitalist chiropractors.Vitalists promote unscientific treatments and treatments outside the chiropractic scope of practice. And the Globe reporters found similar issues with the regulation of chiropractors in other regions of Canada. This got us wondering whether this situation is unique to chiropractors or is Canada’s regulatory model possibly putting us all at risk of ineffective, wasteful, and potentially harmful care? We set out to find out in this two-part series…

Not just any health professionals, regulated health professionals

It seems like every other day another news story pops up about a regulated health professional behaving badly. There are cases when someone poses as a regulated health professional without actually having the qualifications. For instance, there is the imposter in British Columbia the media dubbed “Dr. Lipjob,” who forged a medical licence so she could inject Botox into duped customers.2 However, for the most part, the concerning stories out there are about regulated health professionals, not posers. They actually have the required credentials and have been approved to practice by a regulatory body. Makes you think, just what
does regulation actually mean in Canada?

Serving and protecting the public

There are differences in each province as to which professions are regulated and how regulation is implemented. However, at the heart of regulating health professionals across Canada is the goal of serving and protecting the public. To achieve this, Canada (for the most part) has a self-regulation model. Much like it sounds, self-regulation means that the health professionals police themselves.

Historically, the self-regulation model emerged in the 19th century based on the ideal of trust; the government and the public trusted that the professionals would self-regulate to act in the interests of citizens, not in their own self-interest.4 As a result, professions were granted the autonomy to manage their own affairs via regulatory bodies. And, in turn, the regulatory bodies (typically called colleges) were charged with the responsibility of upholding the public interest. The same holds true today.

How does self-regulation work?

With the goal of serving and protecting the public, the government’s focus is on regulating professions that could put the public at risk if not done by qualified professionals. Accordingly, to become regulated, a health profession must meet the government’s “risk of harm” threshold.5 Basically, the profession must show that its duties, activities, and decisions could significantly impact patients’ physical or mental health or pose the risk of doing so. Once regulated, although there are regional variations, typically each regulatory body self regulates guided by a provincial act and a profession-specific act to:

  • Determine the skills fellow members must possess
    and evaluate credentials
  • Set standards of practice and ethical conduct for
    the profession
  • Ensure that fellow members only undertake
    activities outlined in the profession’s scope
    of practice
  • Investigate complaints about members and take
    disciplinary action as needed

In the 1960s, questions began to arise—if not continue to pick up steam—calling for reform of the self regulation model.6 But first, the proponents…

Proponents of self-regulation

Although there have been rumblings (some louder than others across Canada) about reform, many of the same arguments for the self-regulation model persist that resulted in its initial adoption in the 1800s.7 For example, proponents argue that self-regulation is in the public interest because it:

  • Establishes high-quality entry standards. This protects the public by preventing those who are unqualified from practising because the required level of qualification is determined by those who know best: the professions themselves.
  • Ensures high-quality oversight of practice. Following the logic of above, the skills and service quality of health professions is best judged by the professions themselves. For example, the idea that it’s not possible for non-surgeons to accurately assess surgeons’ very specialized skill set.
  • Cheaper for government. Self-regulation allows the government to delegate and not have to pony up the resources to handle all the many aspects of regulation. The professionals themselves fund the regulatory bodies through annual registration fees.

Detractors of self-regulation

Harking back to the 1960s, the dominant view challenging the self-regulation model is that “while professional self-regulation has many advantages, professionals cannot be trusted to put the public interest above their own; as a result, there needs to be more government oversight to restrict professionals’ excesses.”Essentially, detractors then—and today— argue that conflict of interest is inherent to the self regulation model, so it does not serve and protect the public. For example, conflict of interest can override public interest in many ways:

  • Personal self-interest by taking advantage of power imbalance and/or patient vulnerabilities for personal gain as in the case of sexual assaults.
  • Financial self-interest by establishing barriers to entry, decreasing competition, and creating monopolies.
  • Political self-interest by having influence due to the profession’s size, funding, and/or lobby power. As a researcher explains, “A privileged place in the market is a prize awarded to organized professional groups with connections and status who have managed to convince legislators that they deserve market privileges.”9

Also, proponents of self-regulation feel that the remedy for conflict of interest is requirements like board meetings that are open to the public and public representation within the regulatory bodies. However, detractors feel that the public members may not be viewed as equals with input that carries the same weight as the professionals who, in this instance, are supposed to be their peers.

Detractors also feel that the self-regulation model (remember it came about in the 19th century) does not have the necessary flexibility built into it to effectively address today’s health issues. Specifically, that the way the health professions are defined in their scopes of practice doesn’t reflect the overlapping skill-sets that health professions actually use in practice today. And that it is precisely this overlap—in health care lingo, multidisciplinary skills—that are best-suited to help today’s aging population and our high incidence of chronic conditions. What the outdated scopes of practice do is allow the professions to protect their interest  or their “turf”—hence turf wars among the professions.

In addition, detractors feel that the mishmash of how self-regulation—and for that matter, how regulation overall is handled across Canada—does not provide the consistency necessary to best serve and protect the public. Some also feel that inconsistencies don’t allow qualified professions to easily move across provinces or enable qualified immigrants to enter a profession in a standardized and timely way.

All this has led some researchers to label Canada “the last bastion of unfettered self-regulation in the world.”10 So what approach are other countries taking to regulating health professionals?

Oversight that is national and independent is the theme of the day

The United Kingdom and more recently, Australia, have reformed their regulation model by moving away from an emphasis on self-regulation. Now, although the professions have input, they are overseen by independent bodies at the national level.

United Kingdom

Prompted by a number of scandals involving regulated health professionals, including inappropriate behaviour even causing death, the U.K.’s regulatory system has undergone significant reform over the last 20 years.11 Although there are nine regulatory bodies, they are not self-regulatory in that they do not function autonomously; there is a national independent body (as in, separate from the government and the regulators) charged with regulating the regulators. Sometimes referred to as a “super-regulator” or a “health watchdog,” the Professional Standards Authority for Health and Social Care conducts an annual independent review of each regulator and reports the results to parliament.12 In addition to reviewing how the regulators  are performing, it also reviews how each regulator handles discipline. If it feels that the decision reached by the regulator and/or the discipline imposed is insufficient to protect the public, it has the authority to appeal to the courts.

WHICH PROFESSIONS ARE REGULATED?

Similar to Canada, both the U.K. and Australia regulate professions like doctors, dentists, nurses, and pharmacists. Plus, they regulate some that Canada has varied regulation on, such as naturopaths.

Australia

There used to be numerous territorial registration boards (called registration rather than regulation) with inconsistencies between regions, like the standards for entering and practicing a profession. Not to mention, Australia also had its share of scandals. To remedy the situation, reform began in 2008 as Australia started shifting away from state and territorial-based regulators to national registration standards overseen by now just 15 national boards.13 However, as in the U.K., these boards are not totally self-regulating. Independent oversight is achieved by having board-member candidates recommended by an independent agency (not connected to the government or the boards). Then to have a candidate approved to join a board, the appointment must be approved by another council made up of health ministers from each state and territory.

And then there is the United States…

The U.S. has some federal oversight for some health professions like doctors who have to meet both state and federal regulation, as well as oversight by health maintenance organizations. However, the U.S. model is not typically considered one to look to for ideas regarding reform. If nothing else, it’s exceptionally complicated in a large part due to the many players involved in their overall health care system. To make a long story short, the primary responsibility for the regulation of health professions falls to each state in which the professional practises. State licensing boards issue new licences to professionals who meet the required qualifications and enforce standards of practice, including disciplinary acts.

To self-regulate or not to self-regulate?

So now what? Well, we’ve got a handle (more or less) on what self-regulation means in Canada. And we’ve also seen examples of countries that have moved away from an emphasis on self-regulation. Maybe it’s time to ask the biggie: With the heart of self-regulation being to serve and protect the public, just how are the regulatory bodies doing?

If we based our answer on the Globe article and the chiropractors’ regulatory bodies, we’d say not very good—at all.

But is this incidence of putting the public at risk of unscientific practices the exception or the norm? And, digging deeper, should serving and protecting the public really just be a matter of protecting against harm? Don’t we also want to ensure our regulated health professionals actually do good—as in use evidence-based practice to improve health outcomes?

We’re sure you are on the edge of your seat (if not, please just humour us). Look for our analysis in part two in the April edition of The Inside Story. Yes, a cliff-hanger—we couldn’t resist.

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