Abstract

Regulators face unique pressures to balance competing priorities related to patient safety, public accountability, and practitioners' expectations. Historically, the collegial model of self-regulation has been used as a tool for risk management, to recognize the importance of profession- and context-specific judgment in complex, ambiguous clinical situations. Increasingly, as public accountability concerns have grown dominant within regulatory bodies, this collegial model has shifted toward a more antagonistic relationship between the regulators and the regulated. Wilkie and Tzountzouris (2017) highlight one profession's journey toward embedding professionalism within regulatory practices and policies through application of a right-touch regulatory philosophy. Given the complexity of regulatory work, this shift required significant strategic and deliberative thinking. The challenges of facilitating this sort of cultural shift in the role of a regulator are significant, but so too are the potential gains associated with a more engaged relationship between regulators and their practitioners.

Introduction

The regulation of professional work is a long-established feature of most healthcare systems. Regulation has historically been thought to provide a check on the potential abuse of the asymmetrical knowledge and power of healthcare professionals (Adams 2016) while simultaneously maintaining barriers to entry that protect professional exclusivity (Larkin 1983). Increasingly, however, there have been concerns expressed that regulation may be stifling innovation or actually interfering with the provision of best possible care to clients (Davies 2004). In their paper "Enabling Evolving Practice for Healthcare Professionals: A Regulator's Journey", Wilkie and Tzountzouris (2017) provide a unique case study example of the tensions faced by regulators to balance their mandates of public protection and safety with the need to ensure professionalism is respected and nurtured.

The authors begin their self-examination by highlighting the inherent complexity of healthcare systems and delivery today. As noted by Schon (1983) more than 35 years ago, inherent complexity is the fundamental reason why a society needs professionals in the first place: if clear-cut, algorithm-driven solutions to problems were generally and readily available, well-trained technicians could manage most professional work. Instead, he noted, the reality of most contemporary systems is "messiness": the existence of ill-defined problems in ambiguous contexts defying formulaic solutions. From this perspective, one can view professional work as a search for least-worst alternatives rather than the right answers. The ability to effectively function and make decisions in environments where right answers may not exist and least-worst alternatives are all that is possible may indeed be a hallmark of contemporary professional life. The regulatory challenge becomes how to manage situational judgment and clinical reasoning within such contexts in a way that protects patients without increasing professional complexity and producing decisional paralysis or inaction.

The Regulator's Dilemma

Regulation as a tool for health human resource oversight begins with the notion of managing risks associated with ill-defined problems in ambiguous contexts (Health and Care Professions Council UK 2015). Importantly, as Wilkie and Tzountzouris note, risk mitigation must consider the notion of professional judgment. Problematically, the processes and practices of regulators frequently are "… guided by reference to technical standards of performance and focused on technical skills" despite the reality that more ambiguous professional "… attitudes and behaviours … are equally, if not more important to the provision of safe, high-quality patient care."

The authors effectively frame the central dilemma faced by regulators: a public mandate to ensure safe and effective practice of a profession must be balanced against the reality that, in many cases, professional judgment must be considered in the context of least-worst alternatives. This struggle to reconcile two seemingly irreconcilable constructs has profoundly influenced the evolution of regulation and shaped the thinking of regulators today.

For well over twenty years, the discourse of "competence" has come to dominate regulators' attempts to square this circle (Hodges and Lingard 2012). It has led to the development and enforcement of "standards of practice" and "codes of ethics" as tools for managing professionals' behaviours and actions. It has "… had the effect of sharpening the restrictive (entry to practice) and reactive (professional conduct) regulatory processes, while concurrently bringing the proactive (continued competence) approaches into sharper focus" (Wilkie and Tzountzouris 2017). Importantly, it has resulted in a fundamental change in the essential relationship between regulators and those who are regulated (the members of a profession): it has created an "us versus them" mentality in which regulators stand outside and above the profession in an evaluative role of judging professionals, and has produced a culture in which regulatory requirements are perceived as bureaucratic hoops that professionals must jump through to avoid trouble. In attempting to reconcile the need for public protection with the reality of "messy" day-to-day practice, a fundamental notion of "self-regulation" has increasingly been diluted. In Ontario, regulatory bodies are referred to as "Colleges," reflecting the historic roots of self-governance of the professions. Colleges are, by definition, collegial: they were enacted as a tool for health human resource oversight, which recognized that professional judgment was at the core of a profession's practice and the only ones who reasonably should evaluate a professional's judgment is another professional who himself/herself has "stood in the shoes" of the professional. With the dominance of the competence discourse over the past 20 years, the administratively heavy way in which healthcare funding has evolved, and a shift toward the dissection of professional practice into constituent, measureable parts, these initial ideals have given way to incredibly bureaucratized, anonymized and reductionist regulatory practices that have left many of the regulated – those professionals still in the trenches working day-to-day in increasingly complex environments – feeling disconnected from their regulator, their profession and one another. In this way, regulatory complexity experienced by individual practitioners is simply layered upon the administrative complexity of healthcare funding and the bureaucratic complexity of organizational life.

The Experience of Medical Laboratory Technology in Ontario

The case study presented by Wilkie and Tzountzouris highlights very effectively the impact of these regulatory trends on the culture of the profession of medical laboratory technology in Ontario and suggests an additional contemporary overlay: the effects of managing an evolving scope of practice while addressing a culture of disconnection that historical regulatory practices may have inadvertently bred. As regulators, they wholeheartedly endorse the "value proposition" of regulation – systematic oversight of the health human resource workforce – and clearly establish its value in ensuring public trust as part of a broader social contract between professions and the society they serve. Very helpfully, they draw upon an international literature to compare and contrast different approaches that have been used to manage this tension, and highlight the leading role played by regulators in the UK in re-conceptualizing the role, value and importance of regulation to both professionals and to society. In particular, they emphasize the evolving work of the UK Professional Standards Authority (2015) in the area of "right-touch regulation," defined as the "regulatory force required to achieve the desired result." This attempt to define the regulation as a "proportionate, consistent, targeted, transparent, accountable and agile" tool for oversight reframes the traditional competency discourse that had historically focused on reliability and validity of measurements.

Uniquely, the authors note the salubrious effects of this reframing of regulation on the culture of the profession, and the relationships of professionals to their regulators. The influence of right-touch regulatory practices in the Ontario context has resulted in substantive procedural changes and has influenced healthcare policies directly in a number of ways. From the perspective of these authors, one of the most important (but perhaps underappreciated) changes is in the opportunity right-touch practices provide regulators to reaffirm the central role of judgment and professionalism within their work.

The authors describe the intangible but important aspects of embedding professionalism in the day-to-day work of regulators and recapturing the initial ethos of the collegial/college system of self-regulation. In adopting right-touch practices, there is a unique opportunity to de-emphasize the us versus them regulatory culture that has increasingly dominated regulator-practitioner interactions and instead help build a culture of engagement between the regulators and the regulated. The measurement practices of the competency discourse, while arguably necessary for public protection, may have inadvertently alienated or estranged practitioners, and consequently are insufficient for a collegial regulatory model. Regulators are in the most unique position of any organization within a profession: every single practitioner of that profession connects to the regulator. Although practitioners may graduate from different educational schools, work for different employers and may or may not belong to voluntary professional associations or unions, they must all connect to their profession – and to one another – through the regulatory body. This structure affords regulators with the most important opportunity to actually build a culture of connection, engagement and professionalism, in collaboration with those different schools, workplaces and associations.

The authors note that the College of Medical Laboratory Technologists of Ontario (CMLTO) has coined the moniker "enhanced professionalism" to highlight what they see as one of the most important albeit intangible benefits of this shift. It firmly establishes the regulator as being "on our side," in the corners supporting the profession and its practitioners to enhance their delivery of care, rather than in a more antagonistic "prove to us you are competent" position. In its most practical instantiation, it highlights the importance of responding to the "… need to be more proactive in supporting members' ability to respond to changes in the healthcare system." For regulators, this paper provides an insightful and valuable roadmap for how an evolution in thinking translates practically into the systematic change in regulatory practices necessary to support implementation of a right-touch approach to regulation. For those who are not regulators, the time frames described in this paper may initially appear glacial: the authors indicate that their journey in this area began in 2008 and only recently have they reached the point of being able to publish this paper! While this pace may appear glacial, by legal and regulatory standards, it is quite reasonable: the many moving parts of regulations, standards, laws, practices and policies that are in the wheelhouse of the regulator must be synchronized correctly to prevent chaos, and this process simply takes time, consultation, effort and deliberative/strategic thinking. One of the most important contributions of this paper is in helping to make transparent the manner in which one large and important regulatory body in Ontario went about undertaking this transformation: while their unique context and situation may mean this is not a perfect roadmap for every regulatory body, the lessons learned and principles described are clearly applicable in different jurisdictions and professions.

By correctly recognizing that intangible components of professional culture are as important to practice as psychometrically defined competencies, and aligning regulatory practices to provide this support, CMLTO has worked diligently and effectively to reframe traditional discourses around what the role of a regulator can and should be. By re-emphasizing respect for the "messiness" of day-to-day practice and the centrality of professional judgment to the work of the practitioner, CMLTO sends a strong signal to all stakeholders that they are neither aligned "for" or "against" practitioners, but instead exist to support the highest quality practice of the profession possible. Clearly stating as they do that "(o)ptimizing the ability of a profession to increase its collective contribution to positive health outcomes" shifts the regulatory discussion to a new and higher level of social responsibility and public accountability, one that embraces a central and respected role for practitioners themselves.

Has this worked? The authors acknowledge the methodological challenges associated with answering this question – shifting a profession's culture is neither easy nor readily measurable, and the authors note they continue to work to develop defensible ways of describing the value and impact of the changes they have described. Despite close to a decade of work in this area, it may be fair to note that it is simply too soon to know what the positive benefits of these changes are, and perhaps we may never know (in a quantitative, psychometrically defensible way) the answer to this question. While this may seem unsatisfactory to some, it reflects the reality of what professional work is: complex, ambiguous and messy, defying formulaic solutions and reductionist practices. The authors are to be congratulated for the work they have undertaken to date within their own organization, and for sharing their experiences with the broader regulatory and health communities so that we too can learn from one regulator's journey.

About the Author

Zubin Austin, BScPhm, MBA, MISc, PhD, Professor and Murray Koffler Chair in Management, Leslie Dan Faculty of Pharmacy, University of Toronto, Toronto, ON

References

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Schon, D. 1983. The Reflective Practitioner: How Professionals Think in Action. London, UK: Temple Smith.

Wilkie, K. and J. Tzountzouris. 2017. "Enabling Evolving Practice for Healthcare Professionals: A Regulator's Journey." Healthcare Papers 16(4): 8–21. doi:10.12927/hcpap.2017.25206.