Self-Regulation of Professions: Benefits and Challenges

https://www.canadianlawyermag.com/resources/professional-regulation/self-regulation-the-end-of-an-era-lawyer-discipline-and-the-role-of-law-societies/321919

An article regarding the self-regulation of the legal profession recently caught my eye. Though it focuses on the legal profession, the basic concepts discussed apply to all regulated professions. The sole reason that the regulation of a profession is required is that the work of that profession can, and often does, have a profound impact on the public. With the legal profession, and with most other professions, that impact is more likely to be on an individual rather than the broader public, while the impacts arising from professional engineering or geoscience practices tend to go the other way. In all cases, however, the purpose of professional regulation is to ensure that those members of the public who may be impacted are protected from the unskilled or unethical practice of the profession. The question becomes, then, is it better to allow the professionals to regulate themselves through an organization empowered by government legislation, or should the governments regulate directly?

Most professions in Canada are self-regulated. Provincial government acts create organizations, like APEGA in Alberta, and give them the authority to regulate the practice of the professions. In many cases, the government acts also provide a monopoly (within a defined scope) to the regulated professionals, ensuring that only those who are authorized by the organization are allowed to practice the profession. The organization then sets the appropriate competency levels expected for persons entering the profession, establishes expectations through codes of ethics and practice standards, and provides guidance to the regulated professionals about how to go about practicing properly, all to ensure that those who are practicing are doing so in a way that best serves the public. These aspects of self-regulation rarely are questioned. Existing, practicing professionals generally do know what competencies are necessary to practice, and what methods can best assess those competencies. They also understand what minimum standards should be applied to professional practice, and can provide best-practices guidance. Members of the profession, especially those with considerable experience, have seen how well things work when everything is done right, but are also aware of the huge risks which arise when everything does not. 

Generally, it is when things go wrong that the model and value of self-regulation comes into question. When a complaint is received that alleges a regulated professional has stepped out of bounds of the rules that have been established, the organization conducts the investigation, prosecutes the case (if sufficient evidence is found to support the allegation), and holds a quasi-judicial hearing. If the allegations are proven at the hearing, disciplinary sanctions can then be applied. While there are staff employees who may not be regulated members of the professions doing much of the work behind the scenes in this process, all of the decisions are made by other regulated members, usually volunteers, but also overseen and supported by government-appointed public members. From one perspective, this makes perfect sense. As regulated professionals they should understand the circumstances involved because they themselves have been in similar ones. They would understand what a typical professional would do in those circumstances, and would then be able to reasonably compare the alleged conduct against their understanding of the rules and expectations. They also should be able to apply reasonable sanctions (if the alleged misconduct was proven) to prevent any recurrence of the misconduct. The public members observe and actively contribute to ensure that the broader public interest is always consider. All perfectly logical and reasonable.

The issue is that those outside of the profession, and even those within it who don’t clearly understand the complexities of how they themselves are being regulated, don’t see this as always being a fair process. Those outside of the profession often interpret the process as the profession closing ranks to protect their own. Investigations are confidential, for example, because the allegations that have been made have not yet been proven. A false allegation, whether made deliberately or as a misunderstanding, can irreparably damage the reputation of a professional, so the matter remains confidential until it is determined that there is sufficient evidence to proceed to a disciplinary hearing. 

Disciplinary hearings may or may not be open to the public, but even when they are, the are not well-advertised. Most often, the complainant, either alone or with a lawyer that they have themselves engaged to help, are the only members of the public present. They face a room full of regulated professionals, the lawyers and non-professional staff assisting with the process, and a sole public member on the tribunal panel, who for all intents and purposes looks like they are a captured member of the regulatory organization (though they are not). The complainant and their legal counsel (if engaged) do not serve as the prosecution for the case; the investigative arm of the organization, supported by their legal counsel, does. The complainant’s role is simply one of a witness, making it appear to them that this really could be a bunch of professionals getting together and protecting their own. Now, if everything goes the way that the complainant wants, and a sanction is applied that the complainant feels is fair, they generally walk away satisfied. If the professional is found not to have acted improperly, or if they are found to have but the sanction appears to be too soft in the complainant’s eyes, the idea that the profession closed ranks leaps to the forefront. This is generally when the argument for government regulation gains strength.

The perceived benefits of government regulation are that the processes are wholly under the control of the government, not the profession. The government is supposed to represent the public, not the profession, so there should be no conflict of interest. Professionals are involved in setting the requirements, standards, and guidelines of course, but are contributors and not the decision makers. The downsides are that the public pays for the regulation through their taxes (self-regulating professions are also self-funding), some nuances of professional practice get overlooked (those making the decisions about the profession generally have not practiced the profession), and decisions can be politically influenced (affecting the inter-jurisdictional mobility of professionals and rapidly changing the roles and responsibilities of the professionals based on the philosophies of the elected government’s party, among other things). I should note that many Canadian provincial governments are considering greater involvement in or control of professional regulation in response to actual or perceived failures of the self-regulatory model, and that the US state governments have always directly regulated professions. 

In my opinion, self-regulation is ultimately the best and most efficient and effective means of regulating professionals, as those setting the rules and expectations are also those who are most familiar with how the profession should be practiced. To ensure, however, that the regulating organization not only regulates while holding the public interest paramount, but is seen by both the public and the regulated professionals as doing so fairly, significant transparency is necessary. The basic structure of professional regulation, and the authority granted to the regulating organizations, must be consistent and controlled by the government granting the authority. The details around the requirements specific to the practice of each profession should, of course, be in the hands of the regulated professionals, but the ways that these requirements are enforced should be consistent. Consistency in the structure and approach to regulation would allow for third-party audits to ensure that the processes are being properly followed. Public involvement is a must for transparency, and this needs to include an appropriate level of appointed public representatives on regulatory committees as well as having most meetings open to both the public and to interested members of the professions. The investigative and disciplinary processes may benefit from having an independent government-appointed advocate work with the complainant to help them better understand the process, thus dispelling the perception that the profession closes ranks to protect its own. If this sounds like hybrid model of self- and government-regulation, it is because it is. The proper balance needs to be struck, taking the best parts of each model and combining it into a better one.

The foregoing includes my own personal opinions and observations, but are based on both working for a professional regulatory organization as an employee (and as a regulated professional) and working as a government-appointed public member for the education, health, and veterinary medicine professions. I have researched, thought about, and worked within professional regulation for more than half of my career, but I don’t advance this model as the best, most perfect, or only solution to all professional regulatory issues. I put this forward as a potential model, expecting that it will be challenged, derided, or (hopefully) praised, and I truly hope that all three occur. I ask one thing, though. Regardless of the position you take, please support that position. If you have problems with what I have said, offer suggestions for improvement. If you like it, state what aspects appeal to you and why. My goal is to explore the best approaches possible through an honest, open, and professional discussion.