CLEAR 2008 Annual Conference Anchorage, Alaska Perspectives on the Public Interest – Regulation and Governance Moderator: Caroline MacIssac-Power

CLEAR 2008 Annual Conference Anchorage, Alaska Introduction Background What is “the public interest”? Session Format

CLEAR 2008 Annual Conference Anchorage, Alaska Perspectives on the Public Interest – Regulating the Profession James Collins Budd A. Hetrick, Jr.

CLEAR 2008 Annual Conference Anchorage, Alaska Regulating the Profession Setting Standards of Qualification Establishing a Process to obtain a License Defining Controlled Acts Taking Action Against Unlicensed Individuals

CLEAR 2008 Annual Conference Anchorage, Alaska Regulation & Governance James Collins, Director Delaware Division of Professional Regulation

CLEAR 2008 Annual Conference Anchorage, Alaska CLEAR 2008 Annual Conference Anchorage, Alaska Regulating the Profession Setting Standards of Qualification Establishing a Process to Obtain a License

CLEAR 2008 Annual Conference Anchorage, Alaska Setting the Standards Establishing the criteria for licensure Regulating conduct after receipt of licensure CLEAR 2008 Annual Conference Anchorage, Alaska

CLEAR 2008 Annual Conference Anchorage, Alaska Setting the Standards Standard: A degree or level of requirement, excellence, or attainment. CLEAR 2008 Annual Conference Anchorage, Alaska

CLEAR 2008 Annual Conference Anchorage, Alaska Qualifications Education Experience Examination (written/practical) Certification Licensure in Other Jurisdiction CLEAR 2008 Annual Conference Anchorage, Alaska

CLEAR 2008 Annual Conference Anchorage, Alaska The Process CLEAR 2008 Annual Conference Anchorage, Alaska Apply for License Supply Required Information Receive a License. Maybe? You’ll be amazed with the process!

CLEAR 2008 Annual Conference Anchorage, Alaska Process Considerations Authenticate/Verifiable Automated Secure Intuitive Comply with the statutory and regulation requirements CLEAR 2008 Annual Conference Anchorage, Alaska

CLEAR 2008 Annual Conference Anchorage, Alaska CLEAR 2008 Annual Conference Anchorage, Alaska Speaker Contact Information James Collins, Director Delaware Dept. of State Division of Professional Regulation Phone:

CLEAR 2008 Annual Conference Anchorage, Alaska Perspectives on the Public Interest – Regulating the Profession: Defining Choices in Regulation Budd A. Hetrick, Jr. Deputy Bureau Chief Idaho Bureau of Occupational Licenses

CLEAR 2008 Annual Conference Anchorage, Alaska Governing the Practitioners Defining Controlled Acts Why – What – Who Enforcement Unlicensed activity

CLEAR 2008 Annual Conference Anchorage, Alaska Why regulate? Playing well with others Protection in the public’s interest Protection in someone’s interest

CLEAR 2008 Annual Conference Anchorage, Alaska The Prime Directive “the protection of the public’s health, safety and welfare”

CLEAR 2008 Annual Conference Anchorage, Alaska Public Health Potential for harm physical & mental Physicians & Surgeons Allied Health Professions

CLEAR 2008 Annual Conference Anchorage, Alaska Public Safety Personal Services Public Services

CLEAR 2008 Annual Conference Anchorage, Alaska Public Welfare Standards are dynamic – they change over time –Social / political / professional influences –Changes in public expectations

CLEAR 2008 Annual Conference Anchorage, Alaska Administer and Enforce To administer Proof of minimum competence = the right (license) to practice To enforce Fail to exhibit minimum competence = sanction to the right (license)

CLEAR 2008 Annual Conference Anchorage, Alaska Unlicensed acts Who has jurisdiction? Civil law Criminal law Another agency Most often NOT the regulator Education is key

CLEAR 2008 Annual Conference Anchorage, Alaska Regulating a profession Why – to protect the public What – an activity with potential to harm Who – those who engage in such activities

CLEAR 2008 Annual Conference Anchorage, Alaska Speaker Contact Information Budd A. Hetrick, Jr. Deputy Bureau Chief Idaho Bureau of Occupational Licenses 1109 Main Street, Suite 220 Boise, Idaho, T: F: E:

CLEAR 2008 Annual Conference Anchorage, Alaska Q & A

CLEAR 2008 Annual Conference Anchorage, Alaska Let’s take a break…

CLEAR 2008 Annual Conference Anchorage, Alaska Perspectives on the Public Interest – Governing the Practitioners Bruce G. Matthews, P.Eng. Bonni Ellis, MA, JD

CLEAR 2008 Annual Conference Anchorage, Alaska Governing the Practitioners Setting Standards of Practice and Ethics Continuing Competency / Professional Development requirements Defining Professional Misconduct Establishing a Complaints & Discipline Process

CLEAR 2008 Annual Conference Anchorage, Alaska Governing the Practitioners – Practice, Ethics and Competency Bruce G. Matthews, P.Eng. Professional Engineers Ontario

CLEAR 2008 Annual Conference Anchorage, Alaska Why set standards of practice? Practitioners have demonstrated the necessary knowledge and skills to get licensed – what more is needed? Is it possible to get licensed in a profession without knowing the standards of practice?

CLEAR 2008 Annual Conference Anchorage, Alaska Why set standards of practice? Helps define the profession Communicates expectations to all concerned Standards are dynamic – they change over time –Changes in technology –Social / political / professional influences –Changes in public expectations

CLEAR 2008 Annual Conference Anchorage, Alaska Public interest impetus Need for consistency in practice Need for common understanding of practice Need for tangible measure or benchmark of practice against which practitioners will be assessed and held accountable if found to fall short

CLEAR 2008 Annual Conference Anchorage, Alaska Why set standards of ethics? Ethics = Conduct (i.e., behaviours – non- technical aspect of a practitioners work; professionalism) Is it reasonable to expect more from a licensed professional than from a member of the public with respect to conduct?

CLEAR 2008 Annual Conference Anchorage, Alaska Why set standards of ethics? Helps define the profession Communicates expectations to all concerned Standards are dynamic – they change over time –Social / political / professional influences –Changes in public expectations

CLEAR 2008 Annual Conference Anchorage, Alaska Public interest impetus Need for consistency in conduct Need for common understanding of expected conduct Need for hold practitioners accountable if conduct falls short of the standard

CLEAR 2008 Annual Conference Anchorage, Alaska Continuing competency Vocabulary: Competency Assurance, Continuing Professional Development, Professional Excellence, Practitioner Quality Assurance May or may not be compulsory

CLEAR 2008 Annual Conference Anchorage, Alaska Continuing competency Knowledge and skill are perishable commodities – without some level of effort they fade over time Applicants for licensure may cram for any tests or examinations necessary to obtain a licence – with the typical poor retention afterwards

CLEAR 2008 Annual Conference Anchorage, Alaska Continuing competency Dynamic standards of practice would seem to dictate that some form of professional development is necessary Concept of “keeping current”

CLEAR 2008 Annual Conference Anchorage, Alaska Public interest impetus If standards were not dynamic, would there still be a need for continuing professional development? There has to be more to retaining a licence than paying an annual fee Public’s right to expect a practitioner to actively maintain a minimum level of knowledge and skill

CLEAR 2008 Annual Conference Anchorage, Alaska Speaker Contact Information Bruce G. Matthews, P.Eng. Deputy Registrar, Regulatory Compliance Professional Engineers Ontario 25 Sheppard Ave. W., Suite 1000 Toronto, Ontario M2N 6S9 T: F: E:

CLEAR 2008 Annual Conference Anchorage, Alaska Incorporating the Public Interest into Complaints and Discipline Bonni Ellis MA, JD Steinecke Maciura LeBlanc

CLEAR 2008 Annual Conference Anchorage, Alaska Defining “the public interest” To say that only those businesses affected with a public interest may be regulated is but another way of stating that all those businesses which may be regulated are affected with a public interest. – Harlan Stone (former Chief Justice of the U.S Supreme Court)

CLEAR 2008 Annual Conference Anchorage, Alaska Defining “the public interest” Relativistic - represents the goals and values of a defined group Amorphous - constantly changing and evolving Context Sensitive - applies to a particular state of affairs as they exist at a particular time Multi-faceted - incorporates underlying values and reflects the legal, social, economic, political and religious landscape

CLEAR 2008 Annual Conference Anchorage, Alaska Defining “the public interest” Searching for the public interest Identifying the public interest Defining the public interest

CLEAR 2008 Annual Conference Anchorage, Alaska Locating/identifying/defining “the public interest” External sources - jurisprudence - media - social/political/economic landscape Internal sources - enabling legislation and other statutes - resources - results

CLEAR 2008 Annual Conference Anchorage, Alaska Incorporating “the public interest” into definitions of professional misconduct Why? - accountability - public protection - public confidence How? - by reflecting relationships and risks - through collateral standards, policies and guidelines - by demanding accountability to the regulator

CLEAR 2008 Annual Conference Anchorage, Alaska Incorporating “the public interest” into the complaints/discipline process Responsive Thorough Transparent Balances individual interests Considers resources

CLEAR 2008 Annual Conference Anchorage, Alaska Incorporating “the public interest” into the complaints/discipline process Processes promote consistency create predictability set expectations Policies promote consistency demonstrate reflection provide rationale Outcomes reflect risk consider impacts represent “best” option Reporting provide measurable results disclose “failures” use clear language & format

CLEAR 2008 Annual Conference Anchorage, Alaska Examples of “the public interest” in the complaints process Intake Risk assessment Notice requirements Early resolution Investigation NeutralThoroughTimely Disposition ConsistentResponsiveReasons provided

CLEAR 2008 Annual Conference Anchorage, Alaska Examples of “the public interest” in the discipline process Pre-hearing DisclosurePre-hearingEarly resolution Hearing ILCParticipationOngoing case evaluation Disposition Sufficiently detailed settlement documents Appropriate penalties Clear and thorough decision and reasons

CLEAR 2008 Annual Conference Anchorage, Alaska Defining “the public interest ” The public interest is best served by the free exchange of ideas. — Judge John Kane

CLEAR 2008 Annual Conference Anchorage, Alaska Speaker Contact Information Bonni Ellis MA, JD Steinecke Maciura LeBlanc Barristers & Solicitors Law Chambers – University Centre 393 University Avenue, Suite 2000 Toronto, Ontario M5G 1E6 T: (Ext. 221) F:

CLEAR 2008 Annual Conference Anchorage, Alaska Q & A