Steve Yanish, ALS
As published in the ALS News June 2019
The fundamental purpose of professional legislation is to regulate professions in the public interest. This legislation establishes standards, procedures and controls to protect the public from incompetent or unethical providers. Moreover, professional legislation promotes quality, and balances the rights and responsibilities of the professionals, the service users, and the public.
Professional self-governance is not a right, it is a privilege, but only when the public interest is served. The powers of self-governance are delegated by the government on behalf of the public through professional legislation. If the public loses faith in a self-governing profession, that profession may be subject to increased government oversight or even lose its exclusive right to practice in their area of expertise.
A reformation to professional self-governance is occurring; it has swept through the international community and is becoming more prevalent in Canada. There are several examples of the changing professional governance landscape which may be relevant to Alberta Land Surveyors’ Association (ALSA) members.
Specifically, in the September 2008 ALS News, there was an article entitled: The End of Self-Regulation of the Legal Profession in England. The legal profession in England was reportedly reformed by appointing a new Legal Services Board to become the single independent oversight regulator of legal services. It was surprising that the board was appointed entirely by the government and not the legal profession.
In July, 2016 Quebec’s professional regulatory body for engineers (Ordre des Ingénieurs du Québec or OIQ), had its power of self-regulation revoked and was placed under trusteeship of the provincial government. This change was based on a recommendation from the Office des Professions, the authority that oversees all of the province’s professional regulatory bodies. In addition, the professional authority released a press statement that said “the effective delivery of activities of regulation of the profession and the financial stability of the OIQ are seriously affected, to the point of putting into question the capacity of the OIQ of carrying out its primary mission of public protection.”
More recently, the British Columbia provincial government passed the Professional Governance Act that made comprehensive changes to the governance of five professional regulators for engineering and geoscience, forestry, agrology, applied biology, and applied science technology under the authority of the new oversight body called the Office of the Superintendent of Professional Governance. Although the intent of the new act was to impact the resource sector, it will clearly apply to all sectors.
The new act was based on recommendations from an independent professional reliance report prepared for the province by Mark Haddock in June 2018. His report stated that due to several “high profile environmental protection and resource management issues, including the Mount Polley Tailings Storage Facility breach and the contamination of the Hullcar Aquifer, have drawn public scrutiny and brought to light decreased public confidence in some of the professional reliance regulatory regimes.” Under this new legislation several recommendations were presented:
- increase public representation and institute a merit‐based nomination process for council;
- set common ethical principles;
- require competency and conflict of interest declarations from qualified professionals;
- strengthen professionals’ duty to report unethical conduct of other professionals;
- provide whistle blower protections to those who report; and
- enable professional regulators to regulate firms.
Overall, the new act created significantly more government oversight and control across these professional bodies.
There are several other recent examples of professional regulatory reform in Canada. The Cayton Report from British Columbia’s Professional Standards Authority regarding dental surgeons observed that they should focus on compliance, performance, and accountability. Upon acceptance of the report, the BC Ministry announced that they were setting up a steering committee to examine the recommendations pertaining to all regulated health professions in BC.
Public cynicism is the primary reason why professional regulatory reform has grown. Some of the public may view members of the professions as an exclusive club or an elitist group forming part of an established authoritarian institution.
Further erosion of public and/or government trust in professional institutions is the appearance that professional bodies are not able to separate their regulatory roles and their self-interest roles. These concerns are clearly outlined by the Honorable Justice Cote in his address to the Alberta Land Surveyors’ Association annual general meeting in April 2006 entitled Ethics and the Professional Land Surveyor. He suggested that it was critical to “keep separate the functions of the professional organization which deal with things like professional discipline, breaches of the code of ethics and so on, on the one hand, and the self-interest of the profession on the other.”
If we consider self-discipline from the general public’s perspective, it could be viewed as a conflict of interest, protectionism, or even self-serving actions. Justice Cote provides an example of the police discipline process run and manned by the police department. Here, the concept appears contradictory and far from transparent.
With a membership as small as the ALSA it becomes an issue of significant concern. It is difficult for the public to accept that members could be completely unbiased when administering discipline because they may be acquainted and compete on projects for profit. This issue was addressed in the Cayton Report and it was recommended that the relationship between the regulator and member be one of “mutual respect and distance.” The report also highlighted that “it cannot do so if its Board is elected by registrants and partially subject to their control.” Moreover, the report suggested that it was difficult to have an objective relationship where members are tied so closely financially and have personal contact via professional association. Although ALSA members believe they can act with impartiality, the public will likely always suspect some amount of prejudice.
When trying to earn public trust there are other factors to consider. Specifically, registration requirements, scope of practice, complaint resolution, continuing competency, and quality and standards. Therefore, we must examine whether we are doing enough in these areas to ensure transparency and attempt to negate the perception of self-protectionism.
Nonetheless, we should not view the movement as entirely negative. In fact it may present an opportunity for our profession to evolve so that we can meet the changing values and demands of society. In April, 2019 at the ACLS/PSC meeting in Halifax, Hal Jans and Peter Sullivan presented a session on governance and responding to change. Their presentations raised many questions about the future roles of the professional surveyor. Firstly, how does the competency profile of the land surveyor evolve to meet the changing needs of society? Secondly, will we continue to be boundary surveyors or do we evolve into land administration and spatial data management specialists? Thirdly, how can the land surveying profession continue to meet its regulatory obligations and maintain trust in society given its demographic profile and jurisdictional structure? Lastly, should we move towards a national or regional collaborative approach to the administration of practice review, complaints and discipline, and continuing profession development? In summary, these are all relevant and important questions that must be considered when attempting to understand the changing perception of professional governance. Therefore, I urge ALSA members to approach the issue with an open mind and a creative thought process.
Council identified the issue of professional governance as one of its top strategic priorities. In the next six months, Council will gather information about professional governance to determine what action should be considered. As such, we must examine how we address discipline, qualify new members, ensure competency, and create standards to adapt to the changing needs of society. Most importantly, we must maintain and develop an open and honest dialog with the government and industry to ensure that we have a seat at the table. As former APEGBC President Dr. Michael Wrinch, once said: “Self-regulation is a privilege, not a right, and it is incumbent on us to remain vigilant and ensure that we are acting to fully deliver on our duty to protect the public.”