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Is self-regulation under threat?

Changes in the legislation under which nurses are regulated may seem so far removed from the everyday demands of your job that you may wonder why you should care. Canadian Nurse asked William Lahey, director of the Dalhousie Health Law Institute, to explain what self-regulation means, and why it matters.

May 01, 2011, By: William Lahey

What is self-regulation? Why is it important?

Regulation is the government’s way of protecting the public. Many of the regulated occupations are regulated directly by government or an agency created by government; the trades are generally regulated in this way, for example. Self-regulation is different because the government has delegated responsibility for setting and enforcing the rules to the occupation that is to be regulated. This responsibility, often described as a privilege, is limited to those occupations called professions. Indeed, being trusted with self-regulation is one of the distinguishing attributes of a profession — a badge of honour, one could say.

What does self-regulation mean for the nursing profession?

It means that nurses establish the profession’s values, and the standards for education and practice, and then enforce those values and standards. The key is that government — and society — trust that nurses will do this with public protection as their top priority. Maintaining this trust requires more than simply issuing licences; it depends on regulation to ensure that applicable standards are actually adhered to on a continuing basis. This means that nursing regulatory bodies must conduct strong oversight of the practice of nursing as well as strong intervention (including disciplinary intervention) where public protection demands it. At the same time, nursing regulators must support nurses’ professional commitment to put the public interest over their own self-interest. This commitment is the hallmark of professional vocation and fundamental to society’s decision to allow nurses to self-regulate.

But there is a danger associated with self-regulation…

Yes, it’s regulatory capture: the tendency of regulators to identify more with those they regulate than with the public they are protecting. This danger exists in all forms of regulation, as recent disasters in financial and environmental regulation have demonstrated. Self-regulated professions have a particular vulnerability to this because their regulatory bodies are accountable not only to the public but to the members of the profession they are charged with regulating.

Self-regulated professions have often been criticized for being passive. For example, they have traditionally relied heavily on input regulation — licensing, rather than on output regulation — oversight of the practice of those who are licensed. Other criticisms of self-regulated professions include the perception of leniency when it comes to disciplinary matters and the tendency to put turf protection ahead of the public’s interest.

10 ways to participate in self-regulation

  1. Practise safely, competently and ethically.
  2. Act professionally and accept accountability for your own practice.
  3. Understand and practise in accordance with standards, legislation and policies relevant to nursing and your practice setting.
  4. Practise within your scope of practice and level of competence.
  5. Attain and maintain competence, and use reflective practice in participating in continuing competence processes.
  6. Maintain your fitness to practise.
  7. Participate in quality improvement/quality assurance processes.
  8. Maintain your current registration.
  9. Take action if you become aware of unsafe, incompetent or unethical practice.
  10. Understand and advance the role of nursing and its relationship to the health-care system, clients, colleagues, students and the public.

Source: CNA

What can happen when self-regulation fails to deliver?

What is happening to self-regulation in other countries is a cautionary tale. For example, in the U.K., a series of inquiries determined that the General Medical Council failed to prevent — or to aggressively react to — harm caused by physicians, in significant measure because it gave priority to the interests of physicians over the interests of patients. As a result, the GMC lost public confidence, and there was little public outcry when the government moved to change and limit its self-regulatory power. The GMC no longer enjoys the kind of autonomy that has traditionally been seen as synonymous with self-regulation. Decisions of the GMC on disciplinary matters are subject to appeal to an independent administrative tribunal. Its regulatory activities are subject to public review by the Council for Healthcare Regulatory Excellence. And it came perilously close to being stripped of its authority to adjudicate complaints against its members.

The changes that happened in the U.K. were largely triggered by deficiencies in physician regulation, but they have been applied to all self-regulating health professions there. The same is true in New Zealand, where legislative change to the regulation of health professions has been even more extensive. The investigation of complaints against all regulated health-care professionals is now handled by the Health and Disability Commissioner. Complaints that result in adjudication against nurses are sent to the Health Practitioners Disciplinary Tribunal rather than to an adjudicative body unique to nursing. As in the U.K., these changes were encouraged by events that suggested that the conflicting loyalties of professional self-regulators compromised their commitment to protection of the public.

Is the approach of the U.K. or New Zealand the one to follow?

My concern is that these approaches may fix one problem but create another. New oversight bodies may help to ensure that rules are enforced, and their independence may reduce the risk of regulatory capture. But ultimately, public protection depends on the culture of self-responsibility and accountability that goes with professionalism. And if the regulatory process loses some of its ability to support the professionalism on which public protection depends, that’s a problem. (See sidebar for information on how nurses can participate in self-regulation.)

What legislative changes have been happening in Canada?

We have had a relatively stable regulatory framework in this country for a long time. But there have been changes. Four provinces have now brought all or most self-regulating health professions (and in Quebec, all self-regulating professions) under a common legislative framework (e.g., the Regulated Health Professions Act in Ontario). Typically, such “umbrella” legislation sets aside the idea that each self-regulating profession should have an exclusive scope of practice and thus creates opportunities for flexibility and change in how responsibility is shared among both regulated and unregulated providers. Umbrella legislation also creates a more consistent and coherent legislative framework that brings considerable uniformity to the internal structures and governance of self-regulating bodies, including in their accountability to the public and to the government. And finally, in some provinces, umbrella legislation has resulted in the creation of an advisory council that offers policy advice on health professional regulation to the respective health minister. In these ways, umbrella legislation emphasizes that each self-regulating profession is part of a broader system of health professional regulation that is ultimately the responsibility of government.

What does the move to umbrella legislation mean for nurses?

Some see umbrella legislation as a threat to self-regulation. Some might even see it as a step toward the kind of legislative change that has happened in the U.K. or New Zealand. But this overlooks the much greater intrusion that legislation in both of those jurisdictions makes into the traditional domain of professional self-regulation. It also overlooks the possibility that umbrella legislation reflects a level of accountability that can ultimately be very healthy for self-regulation in nursing and other health professions. Under umbrella legislation, nursing becomes part of a larger group of regulated health professions that benefit from consistent expectations in policy, process and function. Again, every self-regulated profession is vulnerable to self-interested regulation or to being perceived as self-interested. Legislation that creates stronger accountability for the nursing regulator (and other regulators) can help to ensure that self-regulation is focused on others, therefore helping to maintain and build support for the work that self-regulators do. It can even reinforce public confidence in the institution of self-regulation.

What do you think the future holds for self-regulation?

The traditional model of self-regulation can no longer be taken for granted. There are forces driving change, including a trend toward deregulation, that have little or nothing to do with the quality of regulation that is currently happening. But it is critical that self-regulating professions recognize that the momentum for change has also come from the growing attention to patient safety and to quality of care. The failure of a profession to fulfil its responsibilities can become part of the mix.

The future of self-regulation may depend on many factors largely outside the control of nursing. But it will also depend on one factor that is largely within its control: the extent to which nursing self-regulation actually benefits and is demonstrated to benefit Canadians. That must be the focus of nursing regulators. It should also be what nurses expect of them.

William Lahey is Director, Dalhousie Health Law Institute, and Assistant Professor, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia.