Regulators discuss public confidence, government oversight

In Canada and around the world, professional regulators are facing increased scrutiny by both the public and governments for perceptions they’re doing too little to protect the public and too much to guard their own. Such was the warning delivered to delegates of an interactive governance training workshop on September 17 and 18 in Toronto, Ontario, hosted by the Ontario College of Pharmacists and organized by the Council on Licensure, Enforcement and Regulation (CLEAR). PEO President David Brown, P.Eng., BDS, C.E.T., and President-elect Nancy Hill, P.Eng., LLB, FEC, participated on behalf of the association.

The solution for regulators, according to workshop facilitators, is to create trust by building competence in their governance and processes, and being honest, accountable and consistent in their regulatory decisions—especially around discipline.

Skepticism around professional regulators gained public prominence in both the United Kingdom and the United States in the 2000s. In the UK, it was prompted by the public’s horror around serial killer doctor Harold Shipman, who killed at least 250 patients with lethal doses of morphine, according to Deanna Williams, a CLEAR instructor and former registrar with the Ontario College of Pharmacists. The fact that Shipman’s deadly actions continued for years without drawing any legal or regulatory attention prompted the UK government to create the Professional Standards Authority (PSA)—an arm’s length “regulator of regulators” that now oversees the UK’s health professions.

In the US, several massive corporate frauds—Enron, WorldCom and Tyco—cast doubt on the public accounting profession and ultimately brought passage of the Sarbanes-Oxley Act that set new requirements for public accounting firms.

More recently, in Canada, there have been several media reports questioning regulators’ perceived ability—and will—to protect the public. Workshop participants reviewed recent headlines about Ontario regulators of doctors, dentists and pharmacists issuing secret cautions to practitioners that were hidden from the public, as well as about the College of Nurses of Ontario, who came under fire for their dealings with serial killer and former nurse Elizabeth Wettlaufer.

These and other stories raise questions about all self-regulated professions: Who are they protecting? The public or themselves?

The key to building trust, according to Williams and her co-facilitator Jan Robinson, registrar and CEO at the College of Veterinarians of Ontario, is competent regulation and honesty and transparency in regulatory decision making.

“The principles of good regulation include proportionality, accountability, consistency, transparency and being targeted,” Robinson said. “Proportionality—is intervention necessary? And what kinds of interventions lead to desired outcomes? Accountability—justifying decisions and telling the public how it serves and protects the public. Consistency—implementing frameworks and templates that guide decision making and make them defensible. Transparency—being as open as you can to build trust. And targeted—focusing only on what you’re trying to solve.”

The facilitators pointed to the PSA’s concept of right-touch regulation as an ideal model in regulation:

  • Identify the problem before the solution;
  • Quantify and qualify the risks;
  • Get as close to the problem as possible;
  • Focus on the outcome;
  • Use regulation only when necessary;
  • Keep it simple;
  • Check for unintended consequences; and
  • Review and respond to change.

In demonstrating regulatory trustworthiness—especially when it comes to questions from the public and media—regulators are often constrained by their legislation in providing full complaints and discipline details. “But we can be open and honest about our decisions and explain the reasons why we can’t disclose certain things,” Williams said.