Recently, Professor Deborah Bowman of St George’s University in London, shared her musings on ‘What is it to be a good regulator?’ Not long afterwards, she and I had the opportunity to explore this together, as panelists in a Q&A conversation at the Authority's recent academic and research conference.
What does it mean to be good?
In the regulatory context, it’s perhaps easier to define what is good by considering what ‘bad’ regulation looks like. Examples of regulatory failure, resulting in the loss of regulatory privilege* has been seen across jurisdictions, professions and occupations. We have seen teachers in the UK and engineers, denturists, teachers and real estate brokers in various Canadian provinces lose their regulatory privileges. In each example there were common contributing factors in evidence. These related to:
- governance
- relationships
- conflicts management
- competing interests, and
- loss of public confidence and trust.
In my experience, most regulators do experience one or more of these at some point in time. But two or more occurring simultaneously can give rise to ‘a perfect storm.’ As regulators, it’s important that we do not make the assumption that we are ‘good’, just because no one has told us we are not. To do so puts us at risk of being a complacent regulator – good enough, but perhaps not as good as we could be.
Being ‘good enough’ is not bad
In my view, it’s actually where most regulators fit; indeed, where we’ve not been seen to be ‘good enough’ in serving and protecting the public interest, governments have acted quickly to impose sweeping change. The Shipman case and subsequent Inquiry forever changed regulation of health and care professions in the UK, resulting in significant changes. These included establishing:
- clear separations of regulatory and advocacy functions;
- smaller council sizes;
- appointments of competency-based councils with equal professional and lay representation; and
- creating the Professional Standards Authority (formerly the Council for Healthcare Regulatory Excellence, or CHRE) to oversee, monitor and report annually on the regulatory performance and effectiveness of the nine professional health regulators.
Regulatory best practice is demonstrated where regulators act with both competency and courage to exceed expectations in their service and commitment to the public interest.
Courage versus complacency
Consider, for a moment, this line of thinking: that the ‘good enough’ regulators do what they are (at minimum) required to do, while the ‘good’ regulators strive to go beyond and exceed the minimum expectations. This clearly aligns ‘good’ with courageous-ness and ‘good enough’ with complacency. But be clear, complacency is not necessarily a bad thing, and it’s certainly a safe place for a regulator to land. Amidst higher levels of scrutiny and calls for greater oversight and accountability, today’s regulators must accept that going beyond being ‘good enough’ will always be a challenge.
In my view, the courageous regulator pushes boundaries and regulates to the edge of, but within, the law. Consider recent changes in Ontario, where health regulators must strike off a registrant who is found guilty of committing certain acts that constitute sexual abuse under the Regulated Health Professions Act. The complacent regulator will generally only revoke a licence where a registrant is found to have committed one or more of the defined acts of sexual misconduct. However, regulators who view the defined list of acts that constitute sexual misconduct as maximums rather than minimums are more likely to seek alternate penalties for committed acts that are not included on the defined list and to demonstrate reluctance to challenge past precedents for fear of losing on appeal. The courageous regulator will revoke a licence of a registrant in matters where it believes that revocation is both necessary and appropriate in the public interest, whether or not the act committed by the registrant is part of a defined list. More importantly, the courageous regulator is less likely to be deterred by prior decisions or precedents, undertaking to challenge past precedents – of its own and others – simply because it is the right thing to do.
A call to a challenge
What would it take to move a regulator from being good enough to good?
*('Regulatory Privilege' is the right of a profession to regulate ‘its own’ with independence from government. Degrees of such independence varies across jurisdictions but governments generally assume control where such privilege has been lost)
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Find out more about Deanna
Deanna Williams is known nationally and internationally for her work in professional and occupational regulation. She spent 18 years at the Ontario College of Pharmacists, Canada’s largest pharmacy regulatory authority, retiring as its Registrar in 2011. The Minister of Health and Long Term Care appointed Deanna as Supervisor to the College of Denturists of Ontario during the loss of its regulatory privileges in 2012 and 2013 and she also served as Risk Officer, for the Retirement Homes Regulatory Authority (RHRA) from 2014 through 2018. Since 2011, Deanna has been consulting in areas relating to professional and occupational regulation in Canada, the US and abroad, through Dundee Consulting Group Ltd. Most recently, from 2017-2018 Deanna served as Expert Technical Advisor to Ontario’s Minister of Health and Long Term Care, providing advice on best regulatory practices across professions and international jurisdictions respecting processes for complaints, investigations and discipline of matters related to sexual abuse of patients by regulated health care practitioners.
In 2010, Deanna was recognised by the international regulatory community as the recipient of the CLEAR International Award for Regulatory Excellence.
Deanna received her designation as a Certified Association Executive (CAE) from the Canadian Society of Association Executives (CSAE) and her Corporate Director (C.Dir ) designation from the Chartered Director program, DeGroote School of Business, McMaster University. She has served on the Finance and Audit Committee of the University of St Michael’s College, University of Toronto and is Immediate Past-Chair of the Board of Directors of Haldimand War Memorial Hospital in Dunnville Ontario on the north shore of Lake Erie.