FEATURES : Entering Uncharted Waters

Every profession, including regulators, is experiencing changing trends in the way they conduct business. Those trends cover everything from more transparency to amalgamating with similar professions to an increase in litigation.

The winds of change have become a gale. They have swept across the world and across Canada. That’s the message James Casey shared with his audience during his presentation The Winds of Change: Key Trends Affecting the Regulation of Professions during the APEGS annual meeting.

Casey noted Saskatchewan is not immune to wind. Its regulators, including APEGS and its members, should take notice.

“We live in a time of unprecedented change in the regulation of the professions,” Casey explained. “This rapid change presents challenges and risks. But it also presents opportunities for those organizations that are prepared to be proactive and strategic.”
Casey originally is from Estevan. Having grown up on the prairies and with a keen interest in sailing, he knows a thing or two about wind and how to navigate it. Casey now works as a labour arbitrator and as legal counsel to professional regulatory organizations at Field Law in Edmonton.

Casey highlighted 13 key trends affecting every profession across Canada, including professional engineers and geoscientists. He mused whether these trends present risks or opportunities for professionals, as well as provided strategies in how affected professions should respond to each trend.

A few of the key trends include:

Skepticism of self-regulators – Casey said the degree of skepticism is at an all-time high in Canada and around the world about the structure of self-governing professions.
He said a high percentage of government policy makers no longer believe in the value of self-regulation.

“Some believe self-regulating professions further only the interest of the members and not the public. They minimize competition and maximize prices,” he said.

As a result, many international jurisdictions have adopted independent bodies that provide oversight of the regulators.

There has been a loss of self-regulating status around the world through indirect or direct government intervention through removal of self-regulating functions. Casey noted this is a threat to current structures because the structures are intended to advance the public interest.

In order to combat this, regulators need to reflect on whether they are carrying out their functions in a manner that increases public confidence and decreases skepticism. How can a regulator improve its relationship with government?

Casey suggested a regulator develop systems that measure performance; strengthen communications and start telling the stories that gain attention; enhance public participation; conduct governance reviews and improve government relations.

Enhanced transparency

There’s a demand for more transparency – for government, for the media, for any public figure. It’s a serious issue for regulators, too.

A dam collapsed and the damage and aftermath turned into a news story. A member of the media contacts the organization and asks if there is an investigation.
“There has always been a tension between transparency and privacy,” Casey noted. “You need to be transparent, but you also need to make sure you’re complying with privacy legislation. It’s a traditional tension.”

The regulator needs to ask itself if it is sufficiently transparent to maintain public confidence. Is it making enough information public?

Amalgamation of regulators

The Chartered Professional Accountants Canada is one of the largest organizations of its type in the world. It’s the amalgamation of the three largest accounting organizations – the Canadian Institute of Chartered Accountants, the Society of Management Accountants of Canada and Certified General Accountants of Canada – as well as the 40 national and provincial accounting bodies.
The B.C. College of Nursing Professionals follows the same formula. In fact, there are plans to amalgamate 20 health-professions regulators in B.C. into six regulators and create an oversight body over those regulators.

According to Casey, “It would create a tsunami of change in B.C.,” as these different regulators have a forced marriage.

“There is a strong trend across Canada by policy-makers of wanting to create amalgamations of similar professions within one regulatory organization to enhance efficiencies,” he continued. “This is trend among government in Canada. And it’s gaining interest.”

Any regulator needs to consider if there is any value in consolidation. If there isn’t, it must be prepared to demonstrate the status quo advances the public interest.

Pressure on dual-mandate regulators

Some organizations act both as a regulator and perform some association activities. The trend is the governments and policy-makers are increasingly skeptical whether dual mandates are compatible with public interest.

Mounting skepticism led to the introduction of Bill 46 in Alberta. It was introduced last year when all health regulators were prohibited from serving as professional associations.

Casey believes every government in Canada will be looking at the Bill 46 initiative.
Strategies used by regulators: Identify every activity being performed by the regulator. Which of these activities are identified under legislation as requirements it must perform?

An example of an association activity would be posting a job board. It is membership-focused, but does it undermine the public protection function? If yes, then it comes down.

There’s also a group of activities that falls between both. An example is continuing education. It’s viewed as an association activity, however, it is good for members to have the regulator ensure they can make available continuing education.

Increased public participation

Bill 30 in Alberta is ground-breaking legislation that replaces the self-governing model for all health professionals with a co-government model for the health professions.

Before Bill 30 was introduced, a regulator required 25 per cent of its council be represented by public members. Now, it’s a minimum of 50 per cent.

Governments are looking to increase the degree of participation in regulatory activities.

Over the past 20 years, public members have become more involved with the regulatory process.

Regulators should think about how they can voluntarily enhance public participation in the regulatory activities.