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M National Library of Canada Bibliothèque nationale du Canada Acquisitions and Bibliographic Sen/ices Acquisitions et sen/ices bibliographiques 395 Wellington Street Ottawa ON K1A0N4 Canada 395, rue Wellington Ottawa ON K1A0N4 Canada Yourm VotmrétémK9 OufW Notmritétwna The author has granted a non­ exclusive Ucence allowing the National Library of Canada to reproduce, loan, distribute or sell copies of this thesis in microform, paper or electronic formats. L’auteur a accordé une licence non exclusive permettant à la BibUothèque nationale du Canada de reproduire, prêter, distribuer ou vendre des copies de cette thèse sous la forme de microfiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership of the copyright in this thesis. Neiüier the thesis nor substantial extracts from it may be printed or otherwise reproduced without the author’s permission. L’auteur conserve la propriété du droit d’auteur qui protège cette thèse. Ni la thèse ni des extraits substantiels de celle-ci ne doivent être imprimés ou autrement reproduits sans son autorisation. 0-612-62543-5 CanadS APPROVAL Name: Margaret K. W arcup Degree: Master of Science in Com m unity Health Thesis Title: REGULATION O F HEALTH PROFESSIONS: TH E REGULATION OF THE PHYSIOTHERAPY PROFESSION IN BRITISH COLUMBIA AND TH E CHANGES IN REGULATORY POLICY IM PLEM ENTED WITH THE HEALTH PROFESSIONS ACT ( 1996). Examining Committee: ChairSDr. Les he Km Professor, Environment! UNBC Studies Program Supervisor: Dr. M artha M acLeod Associate Professor, Nursing Program UNBC Committee M em ber/D r. Cindy Hardy Assistant Professor, Psychology Program UNBC Committee Member: Dr. Kvvong Tang Associate Professor, Social W ork Program UNBC f x:xtemal t e r Examiner: Dr. John Gilbert Professor and Coordinator o f Health Sciences L^BC Date Approved: 11 ABSTRACT Self-regulation o f the professions is established by governments for the purpose of protection o f the public and to direct the quality o f health care. British Columbia and other provincial jurisdictions are undergoing a period o f change in the way health professions are regulated. The current changes are comprehensive and different than policy directions reflected in previous provincial statutes. Traditional regulatory powers granted by government are designed to establish the scope of practice o f the profession, to set the standards o f qualifications to practice the profession and to enforce minimum standards o f practice by a complaints and discipline process. The new regulatory approach includes a change in how scope of practice is defined and adds a new regulatory responsibility o f ensuring continued competency o f the regulated professional. The purpose o f this study is to increase understanding o f the organizational context o f professional regulation by identifying the strengths and limits o f professional regulation. To do this the structure o f health profession self-regulation is provided along with a summary o f current forces affectii^ the regulation o f health professions. A detailed and analytical look at the regulation o f the physiotherapy profession in British Columbia is then provided. This historical summary sets the basis for detailing and analyzing the current changes in the way professions are regulated with the new legislative framework o f the Health Professions Act (1996). The study identifies that the need for professional regulation is based on the service relationship between the health care provider and the consumer o f the services. In this relationship there is an imbalance o f knowledge and power between the professfonal and the consumer. Self-regulation has an effect on this balance by the establishing and enforcing o f standards o f practice. The characteristks o f health professions are analyzed and the purposes lU and extent of professional powers that are established by professional self-regulation are described. A consistent criticism o f professional self-regulation is the ability o f the professions to use these powers to attain dominance and control Self -regulatory powers have significant effects on the cost, availability and quality o f health services. The findings o f this study show that changes in professional dominance and control are occurring with the implementation o f the new regulatory feamework established by the Health Professions Act (1996). In particular the new approach to defining scope o f practices with shared competencies and only a few reserved acts has the potential to change the dynamics o f professional dominance and control. Reserved acts are those acts determined to have the potential o f significant harm and are given to specific professions. The study finds that there is a probable increased accountability o f the professions for public protection through the establishment of a current and uniform regulatory structure. Along with increasing professional accountability the new regulatory responsibility o f assurance o f continued competency potentially increases the quality o f services being delivered by health professionals. IV Table of Conteots Abstact u Table o f Contents iv Acknowledgment vii INTRODUCTION I Chapter One Introduction and Overview Current Changes in British Columbia Study Approach 1 4 S Chapter Two Regulation o f Health Professions Defining a Health Profession and a Health Professional Structure and Forms o f Professional Regulation Administrative Law Self-regulation Defining Levels o f Regulation Structure o f Health Regulation Historical Summary o f Early Regulation Review of Provincial Regulatory Changes Summary 8 8 12 13 14 15 17 18 20 24 Chapter Three Environmental Scan To Regulate or Not Health Care verses Medical Care Knowledge and Technology Changing Population and Provider Demographics Globalization Equity and Access Health Care Governance Health Care Funding Competent Providers Accountability Summary 25 25 26 28 28 30 31 31 31 33 35 36 Chapter Four Regulation of Physiother^ists in British Columbia Identifying the Need for Regulatory Changes The Regulation o f Physiotherapists in British Columbia Physiotherapists and The Health Professions Act 37 37 39 47 Chapter Five Open Scope o f Practfee and Reserved Title Defining the Reserved Act Model 61 62 The Move to Open Scope o f Practice Definitions The Effect o f Implementing Open Scope o f Practice Definitions Reserved Titles Summary 62 64 69 71 Chapter Six Assuring the Continuing Practitioner Competence 72 Attaining Continued Competence 73 Continuing Competence is not an Isolated Responsibility 74 The Approach taken by the College o f Physical Therapists of British Columbia 76 Chapter Seven Conclusion References Apendix A B C 82 94 The Act Respecting Naturopathic Physicians Proposed Reserved Acts in British Columbia Reserved Acts for Physical Therapists In British Columbia 101 104 106 VI ACKNOWLEGMENT The path taken to complete this thesis had a significant impact on my life. Initially I was going to dedicate my thesis to Dr. Peter Larkin. Dr. Larkin and myself were on the Interim Governing Council to establish the University o f Northern British Columbia. Dr. Larkin mentored me to understand that it is possible to be a practicing health professional in Northern British Columbia, complete a Masters degree and at the same time make a contribution in the research field. Dr. Larkin passed away before seeing the success o f the programs he helped build for our University. I will always hold great respect for his mentoring and wisdom. Others also greatly impacted my path and I would like to acknowledge them. Firstly, Dr. David Fish. Dr. Fish was a mentor and friend. His vision o f a regional Community Health Program was integral to the success o f this program. Dr. Fish passed away February 3,2000. My memories o f his wise guidance, his friendship and the “stroking o f his chin” while he contemplated his next words will always stay with me. Dr. G. Weller, the first President o f UNBC was on my thesis committee. He passed away before seeing my work completed. His guidance and my memories o f working with him are valuable to me. This thesis is on the regulation o f the physiotherapy profession in British Columbia. Beth Maloney was the first physiotherapy Registrar in British Columbia. I describe Beth as my right hand in regulatory issues as she and I spent many years working on regulatory issues. Beth passed away December 3, 1999 before being able to see my completion o f my thesis work but the memories o f her fiiendship, wisdom, sense o f humor guided me on my path. She is very much part o f this work. vil I extend my appreciation for the experience o f being a student o f the Teirace/Kitimat Community Health cohort. We were blessed with experiences that will make us lifelong friends. A special appreciation is extended to my thesis advisor. Dr. Martha MacLeod. As my advisor she took over from Dr. Fish and patiently guided me not only in learning the knowledge and skills to complete this thesis but also in sharing o f life experiences. Thank you to all, especially my children, Kristen, Graeme and Katie for their patience while I studied. And a friendship smile and thank you to many friends for their encouraging words reassuring me on this path, but especially to Jean Alexander for the special friendship we have been fortunate to develop. CHAPTER ONE INTRODUCTION AND OVERVIEW British Columbia and other provincial jurisdictions are undergoing a period of charge in the way health professions are regulated. The changes in the legal framework for regulating health professions are comprehensive, and different than policy directions reflected in the previous provincial statutes. In 1991, the province o f Ontario was the first to enact regulatory changes, with changes in British Columbia occurring with the implementation o f the Health Professions Act in 1994. Self-regulation o f the professions is one o f the ways governments are able to direct the structure and functions o f the health care system. Governments grant self-regulation to the professions based on the overriding objective o f public protection. The regulatory powers traditionally granted to the professions are; establishment o f the scope of practice o f the profession, setting of the standards o f qualifications for registration or license to practice the profession, and allowing enforcement o f minimum standards of practice by a complaints and discipline process. Although the granting o f self-regulatory powers to the professions is done with the overriding objective of public protection, the granting o f self-regulatory powers to a profession does enable the profession to potentially make decisions in the best interests o f the profession and not the public. There is a need to attain a balance in the powers granted with self-regulation so that the interests o f the profession are not served over the protection o f and accountability to the public. Current regulatory reform is in response to historical criticism where the interests of the profession have been or are perceived to be served over the protection o f the public. The examination o f regulation o f health professionals within the overall health system is a complex and multifaceted task although measures o f effectiveness can be determined from the reasons why governments have developed regulations. These measures are whether the public is protected from harm, whether there is greater efBciency and accountability in utilization o f health care professionals and whether there are increased mechanisms for the provision o f high quality care by regulated health professionals. The regulation o f health care professionals has an effect on the provision o f health care by having an impact on the supply, availability and competence of health professionals. Morrison (1996) suggests that most members o f the health workforce are regulated, and therefore an unknown, but significant, component o f the cost o f health care is due to regulatory restrictions on the use of the workforce. Regulation establishes restrictions on the use o f health professionals within the workforce by regulatory control of the scope o f practice and the qualifications required for providing health services. Kany (1996) proposes that unnecessary barriers to cost-effective, accessible, quality health care, including those set by professional regulation, must be identified and removed if a nation is to reach the important social goals of cost containment, improved access, and maintenance or improvement of quality o f care. Increasing knowledge and complexity of practices, a shortage o f health care providers in the traditional professions and demands from consumers for an expanded range o f health care services are resulting in the development of a wider range o f health care providers. These are, in turn, resulting in an increasing number o f health professions requesting self-regulation. This increasing number o f requests highlights the criticism o f self-regulation being sought by professions as a means to attain professional status and to be self-serving for the profession instead o f to protect the public. In order to balance public protection with the effect o f regulation on the cost, availability and quality o f health services it is important that the public and professionals recognize the purpose o f regulating health professionals. Rachlis and Kushner (1994) confirm the need for the provinces to review current laws and regulatfons for the professions but caution that further evidence is needed as to whether or not the new approaches to regulation will actually serve their intended purposes. The purposes o f this study are to increase understanding of the organizational context of professional regulation by identifying the strengths and limits o f professional regulation, and identifying emerging issues that health professions 6ce when implementing the current changes in regulation. This study focuses on how the new regulatory framework has the potential to increase public protection while attaining a balance between public protection and the interests o f the profession. The study will consider how the new self-regulatory framework is accountable to the public and provides direction for providing high quality health care. To provide an in-depth picture o f regulation o f health care professionals the examination will begin with defining a health professional and the structure o f professional regulation. The defining o f a health professional and the services the professional delivers are important in developing an understanding of the ongoing tensions that occur in the development o f regulatory policies. lUich et al., (1977) illustrates how professionalism is one of the ways professionals have control over their work. Regulation enables professions to gain exclusive right and license to manage their work and thus establishes the ability for professions to control the services provided. In other words the granting o f regulation to a profession legitimizes the profession. One o f the first health professions to attain regulatory status was the medical profession and thus this group is often used as the sample group when analyzing the effects o f regulatory policies. Reviews o f self-regulation (eg Cobum et. al., 1983; Illich et.al., 1977)) often use ttw medical profession to illustrate Iww a profession attains dominance through regulation. Following a discussion on various perspectives for defining a health profession and the concepts related to professional controls and dominance a scan o f the current environmental forces affecting the regulation o f health care professions will be provided. To further assist in understanding the causes and needs for the current regulatory changes, a descriptive case study o f the history o f regulation for physiotherapists in British Columbia will be provided. The final chapters will describe two significant changes that have occurred with current regulatory reform. The first change is how scope o f practice definitions will now be open and shared. The second is the new regulatory responsibility o f ensuring continued competency o f regulated health professionals over the life-times o f their careers. The study will conclude by summarizing the current status o f professional self-regulation and identify recommendations for further exploration. The analysis will focus on the question: In what ways does the new regulatory fiamework have the potential to increase public protection and accountability? The potential for greater public protection may be seen by the extent to which the public is protected from harm. Accountability can be defined as the responsibility for the services one provides or makes available. In other words, is there accountability built into the new regulatory framework to ensure regulatory decisions and actions are in the public interest and provide effective mechanisms for the provision o f high quality care? In British Columbia, the physiotherapy profession was one o f the first previously regulated health professions to become regulated under the Health Professions Act (1996). Using the experiences o f physiotherapists in British Columbia, the final chapters will describe the two significant changes that have occurred with current regulatory reform. Current Changes in British Columbia Legislative policy for professional self-regulation in British Columbia started to change with the introduction o f an exposure bill, Bill 91, The Health Disciplines Act, July 1989. An exposure bill is a method used by governments to inform the legislature o f pending legislation and to allow a process o f feedback prior to passing the bill into law. On the basis of comments and suggestions received, changes were made and Bill 31, The Health Professions Act, was introduced to the legislature by John Jensen, Minister o f Heahh, on June 28,1990. The Minister of Health stated that the new Act would provide a strengthening o f public safety by enabling consumers to be even more confident that the care they receive is rendered by health professionals who are governed by enforceable standards o f practice (British Columbia Debates, June 2 8 ,1990,#10642). The bill passed third reading and was proclaimed in July 1990. The Act has continued to evolve and the most current form is the Health Professions Act, R.S.B.C. 1996, c.l83. The objective o f the new Act is to attain public protection through an effective and accountable regulatory structure. The professions continue to be self-regulated by the government continuing to delegate the duty and responsibility to regulate the profession to members of the profession. The new regulatory framework introduces the use o f umbrella legislation. Umbrella legislation is where the legislation applies to more than one professional group. The B.C. government did not put all regulated professions under the new legislation as occurred in Ontario, but chose to move regulated professions under the new legislation when and if they required updating of their acts. The legislation implements current principles o f administrative law to standardize the self-regulatory responsibilities. The new legislation adopts two signifrcant changes for self-regulating professions in British Columbia. The most innovative and distinctive feature o f the current changes is how scope of practice or “who can do what” is regulated. The change recognizes overlapping skills amongst health professions and aims to remove monopolies over areas o f practice. Examples o f monopoly situations include chiropractors having the exclusive right to use manipulation techniques or physicians being the only ones to prescribe medications. Scope o f practice definitions have changed from being restrictive or exclusive, to being open and shared between professions. A second innovative feature o f the new Act is how it expands regulatory responsibilities to ensure the continued competence o f health professionals throughout their careers. The responsibility for continuing competence was delegated to all regulated health professions in British Columbia, not just those regulated under the Health Professions Act (1996). The responsibility for ensuring continued competence is added to the traditional regulatory responsibilities for setting the entry-to-practice requirements and enforcing standards of practice. Study Approach In this study I used current personal involvement and past experience to access the relevant information. My exposure to regulatory issues began in 1987 when I was elected as a member o f the regulatory board o f the Association o f Physiotherapists and Massage Practitioners o f British Columbia (APMP). I held several executive positions on this board until the new legislation was accepted in 1994. Between 1994 and 19991 was the chair o f the College o f Physical Therapists of British Columbia (CPTBC). Currently, I chair the Canadian Alliance o f Regulatory Boards (the Alliance). The Alliance is the national association o f regulatory boards o f the provinces of Canada. Both the regulatory CPTBC and the Alliance were informed o f this thesis topic and that the author would be using information from direct observation and from the review o f relevant literature and archival materials. The author has signed, and respects, the code o f ethics and confidentiality policies established by both groups. The study approach included obtaining and analyzing information from a range o f sources including a literature review on regulatory issues and the use o f archival materials from regulation o f physical therapists in British Columbia. During the years o f involvement on the regulatory boards I have been immersed in the process of the regulatory changes and thus it was important to systematically reflect on and re-confirm the regulatory issues being considered. Lofland and Lofland (1995), in discussing the relationship o f the researcher to the research field state, "The moral is this: be neither discouraged nor overconfident about your relationship to the setting. Whatever the relationship, it is simultaneously an advantage and a drawback” (p.23). There are several advantages to being so closely involved over the years. These include the ability to make direct observations and to collect the relevant literature and archival materials, including minutes o f meetings, newsletters, correspondence and personal notes taken. This study allows me to reflect on the issues and provides me with the chance to pose new questions and consider new perspectives. The challenge or drawback, however, is to ensure that personal biases do not unduly influence the scope o f the examination. During the process o f reflection on the changes and issues one must acknowledge the personal and professional perceptions affecting the memory o f the actions taken. Attempts must be made to verify the facts, to weigh the factors influencing a perspective, and to allow new perspectives to emerge. This thesis reflects my attempt at achieving an accurate, balanced and reflective account o f regulatory changes and their implications. CHAPTER TWO REGULATION OF HEALTH PROFESSIONS A profession may be defined &om differing sociological, political and economic perspectives; however, this chapter will emphasize how a profession is defined for regulatory purposes using the physiotherapy profession in British Columbia as an example group. A review of the structure and forms o f professional regulation will be given. The conclusion o f this chapter will provide an historical outline o f professional regulation and note the current changes occurring in Canada. Defining a Health Profession and a Health Professional When the privilege o f regulation is granted to a profession by government, the profession achieves legal recognition o f its professional status. According to the Health Professions Act R.S.B.C.1996, c.l83, the legislated definition o f a health profession: ...means a profession in which a person exercises skill or judgment or provides a service related to (a) the preservation or improvement o f the health o f individuals, or (b) the treatment or care o f individuals who are injured, sick, disabled or infirm. Understanding the characteristics o f a profession helps in explaining the need for health professional regulation. One o f the earliest reports that defined characteristics o f a profession in the context o f regulatory policies was by McLeod (1973) in the Special Report Public Regulation o f the Professions prepared for Foulkes, R.G. (1973), Health Security for British Columbians (the Foulkes Report). McLeod’s report outlines the following characteristics o f a profession: • • • • a profession is an organized group o f individuals providing a specific service, a service based on a body o f knowledge which can be applied to human needs and a social purpose. practitioners are highly educated and have a common body o f knowledge. standards o f ethical practice and conduct must prevail considerable public confidence is given to the practhfoner. • members must achieve and maintain high quality standards and competence, (p.2,3) Professionals have organized into groups that have specific roles and responsibilities. For physiotherapists in B.C. these groups include the regulatory body (The College of Physical Therapists of British Columbia, CPTBC), the professional association (The Physical Therapy Association of British Columbia, PABC) and the educators (The Association o f Academic Educators and the Faculty o f the School o f Rehabilitation at the University o f British Columbia). Understanding the division between the roles and functions o f the professional association and the regulatory colleges can be confusing. The professional association promotes the professional interests, and the regulatory colleges act in the interests o f the public. A criticism o f professional self-regulation is that the powers granted with regulation can be misused for professional self-interests, control and power within the health care system. In the new regulatory structure established by the Health Professions Act (1996) there is a clear separation of professional membership promotion functions from regulatory responsibilities of registration/licensing and discipline functions. Prior to the Health Professions Act (1996) it was possible for one board to have both regulatory and professional association roles and responsibilities. The separation of regulatory colleges from professional associations reduces the potential for interests o f the profession taking precedence over interests of the public. A primary responsibility o f regulatory colleges is protection o f the public by setting standards for education, training and practice o f the professional With regard to physiotherapists, Atkinson (1988) developed criteria o f professionalism and documented how the expertise and education o f physical therapists met these criteria and in particular, achieved the highest professional level autonomy o f judgment. Atkinson used the British Rules o f Professional Conduct o f the Chartered Society o f Physiotherapists in 1987 to substantiate her analysis on professionalism. Atkinson used the following criteria o f professionalism developed by Moore (1970): 10 1. Strong motivation and lifetime commitment towards the chosen career. 2. Membership of an established organization committed to defining, protecting and enhancing the represented profession. 3. Completion of a prolonged period o f specialized education and training. 4. Orientation towards servir^ clients through the competent application o f specialized knowledge and skills to individual needs. 5. Autonomy o f judgment within the realm o f the given pro&ssion. The ability o f a health care professional to use autonomous judgment in the application of specialized knowledge and skills is reinforced by the establishment o f self­ regulation o f a health profession. Cobum (1999), in examining professional autonomy, states Professional self-regulation, the measure o f autonomy, implies not only that occupational organizations represent the profession externally and are not subject to outside control, but the occupation itself and no one else controls the work o f individual practitioners (p. 28). Graddy (1991) discussed how researchers and policy makers are increasingly scrutinizing the acceptance of obtaining self-regulation as a natural progression o f professionalization o f an occupation. Attaining self-regulation grants the profession the power to set and enforce the qualifications required for entry to practicing the profession and the standards of practice that occur in the service relationship between the client and the health professional. These regulatory powers have an influence on the costs o f services, the number o f qualified professionals and the availability o f services. Because health care involves people, a mark o f a health professional is service through relationships. The relationship between a k a lth professional and the consumer is unequal in power and knowledge. Professmnal knowledge establishes a power relationship between the health professional and the patient. The relationship inequity between the professional and the consumer is used in justifying the need for regulation to protect the public. Fulford (1996) states: “Medical knowledge has too often been used, not to empower the patient, but as a power base for the doctor” (p. 15). Fulford and others (Frwdson, 1970; Starr, 1982) describe, Il usually using physicians as the sample group, how medical power can be used for commercial gain and for a controlling attitude of " I know best”. The powers o f the professional are affected by the profession’s regulatory ability to establish its scope o f practice and by defining professional standards required in the provision o f services. Professional’s can use their knowledge not only in direct patient relationships but also for influencing social and political processes. Airaksinen (1994) presents a sociological view o f professional service by comparing the professions of engineering and medicine. In comparing the professions Airaksinen describes the differences in the value and purposes o f the service being provided. In medicine the value and purpose o f the service is to be healthy and one cannot refute that there is a wish to be healthy except in unusual circumstances where a person will use ill health for personal gain such as avoiding work. Whereas the services provided in engineering are based on determining a need to provide the service. For example there is a need to build a bridge. This difference in the purpose o f the service being provided and the value of the service affects the power and relationship the professions have with the public they serve. Physiotherapists have the type o f service relationship where there is a direct effect on the public. A direct effect is when a health professional applies a treatment to an individual and the individual is directly affected by the treatment. This direct effect justifies the need to protect the public by enforcing the standards o f practice for the profession. An indirect effect is when the decision or action o f the professional is not applied directly to the consumer. If the relationship is one of an indirect effect then public protection may be accomplished by means other than by professional regulation. The engineering and accounting professions are two examples o f professions where application o f professional skills may be regulated and the 12 public protected through legislation such as building codes and taxation laws. Educational qualifications or specialized training are part o f defining a profession. Regulation o f a profession gives the profession the power to establish entry-level practice qualifications. Professions have been moving away fi-om using graduation firom an education program as the primary criterion for entry to practice and moving towards the requirement of competency based assessments. Physiotherapists in Canada started to implement a national competency based examination in 1994. The purpose o f the examination is to determine that the candidate has acquired the minimal entry-level standard prior to being granted a license to practice physiotherapy. Both Canadian and non-Canadian educated physiotherapists must successfully complete the examination. Eligibility for a candidate to take the competency examination is established through a credentialing process. For Canadian educated applicants, credentialing criteria include having attained a Canadian baccalaureate degree in physical therapy from an accredited program, completion o f the required hours o f supervised clinical practice and proficiency in the English or French language. For the non-Canadian-educated, the credentialing process evaluates the applicant’s education and determines if it is substantially equivalent to the Canadian baccalaureate degree in physiotherapy. In the regulatory fimnework of the Health Professions Act (1996) responsibility for determining entry-level standards is retained as a responsibility o f the regulating College. Structure and Forms o f Professional Regulation The World Health Organization (WHO) categorizes health laws into twenty-two categories. Legislation implementing health policies for health manpower is one o f the largest areas o f legislation as so many aspects o f the health systems depend on the qualifications of health providers. Roemer (1993) defines three main forms o f health profossfon licensure laws in which a central authority exercises some control over the activities o f tfie open market as: 13 Form One: Authority is invested in the Ministry o f Health (e.g. in Sweden and Japan). Form Two: Authority is invested in independent quasi-govemmentai groups recognized by the law (e.g. Medical Council in Great Britain, National Council o f the Order o f Physicians in France, the various agencies or colleges established by States and Provinces in the United States and Canada). Form Three: Authority is invested injudicial decisions on controversial matters, often involving interpretation o f a statute (e.g. a court decision on what is informed consent for treatment.) Each of these forms o f occupational regulation has a different effect on the service market, incurs different social costs and has different benefits to practitioners and consumers. It is Form Two where the authority is delegated to a profession to be self-regulated, under which health professions are regulated in Canada. Administrative Law While it is beyond the scope o f this study to discuss in detail the types o f law enacted by governments in Canada, some basic definitions will assist in understanding the form o f law under which health professions are regulated. In Canada, parliament is responsible for representing the popular will and does so by enacting legislation that sets general principles into law. Constitutional law establishes the rules that determine which institutions have the right to make laws that govern our society. Administrative law is a branch o f civil law that governs the administrative and adjudicative functions o f the government and quasigovemmental bodies and tribunals. The form o f regulation used to establish the self-regulating colleges for health professionals falls under the purview o f administrative law. The functions o f administrative law include setting the scope o f the powers and duties delegated to administrative bodies, setting the principles o f how the powers are to be exercised, and providing legal remedies for those aggrieved by administrative actions. Statutes enacted by the government delegate 14 powers and duties to the administrative or regulatory bodies. In other words there must be lawful authority for the actions o f the administrative bodies. The principles o f ‘^natural justice” or “procedural fairness” are an essential part of administrative law. The foundation o f these principles is the duty to act foirly in administering the powers and duties specified by the statute. Statutes are difficult to amend as they can only be amended by the legislature. Regulations set the details o f how the statutory functions are to be administered. Regulations can be changed by an Order in Council or a Minister of the government. In Canada, federal and provincial govenunents are increasingly using template, umbrella or skeleton legislation to establish administrative laws, where the administration o f the law applies to more than one professional group. One example o f “umbrella” legislation is the British Columbia Health Professions Act (1996). Use o f umbrella legislation eliminates the need for parliament to debate the complex and technical details o f every professional group. Regulatory authorities have greater flexibility and more immediate ability to adapt the law in response to social or economic changes. However there is concern that governments are allowing an erosion of legislative power by negating their direct responsibility for the laws. To balance this concern, umbrella legislation needs to be consistent with public policy, and incorporate methods of accountability. It is necessary to clearly define the purposes and methods o f regulation and establish regular legislation reviews. Self-regulation A government often delegates authority for administering the regulation to those with the expertise and the ability to effectively deal with issues requiring technical and scientific expertise. This is called “self-regulation”. It is important to understand that statutory authority for self-regulation is a privilege given by the government to a health profession and is often referred to as delegated legislation. Reviews o f federal and provincial reports on health care show that there has been repeated consideration o f the issue o f whether or not self-governance should be granted as an 15 effective way to protect the public. Federally, the Hall Cotnmissfon (1964) report stated that free and self-governing professions means the right o f the members o f health professions to practice within the law, to free choice o f location and type o f practice and to professional selfgovernment. Other provincial reports (The McRuer ,1968 report in Ontario; The Castonquav Report released August 29, 1967 in Quebec) agreed with the Hall Commission’s concept that to achieve high quality service, professionals need to work with integrity, independence and freedom from controls to allow the application o f their knowledge and skills. The 1991 report. Closer to Home. The Report of The British Columbia Roval Commission on Health Care and Costs (the Seaton Report) endorsed self-governance as the chosen means for regulating health professions in British Columbia. However, the report points out that there are evolving levels o f self-governance being granted by governments. The new regulatory structure set by the Health Professions Act (1996) in British Columbia is based on the principles of self-governance with the objective o f obtaining a balance o f essential regulation to safeguard the public with the autonomy (or advantages) that self-regulation gives to the professions. Defining Levels o f Regulation Different levels o f regulation have been developed to provide public protection and yet apply a policy o f using the least restrictive level o f regulation. Regulation can occur in three ways; licensure, certification, and registration. There is a lack o f clarity and consistency in the everyday use of these terms. Licensure is the highest form o f regulation since it provides the highest level o f public protection. Generally govenunents must perceive a significant risk o f harm to the public before a profession meets this requirement. Licensure defines a particular scope of practice making it illegal to perform a service unless one has the specific qualifications. Licensure protects the use o f a title and allows certain activities to be done only by members who hold certain qualifications. Lkensure defines standards o f practice to be controlled and establishes 16 power for complaint and discipline processes. In Canada, the licensure o f health professions is a provincial regulatory responsibility. In British Columbia, prior to implementation o f the Health Professions Act (1994) the recognized health professions with regulatory statutes included Optometrists, Naturopaths, Dentists, Chiropractors, Medical Practitioners (Physicians), Nurses, Pharmacists, Podiatrists, Psychologists and Physiotherapists (the Physiotherapy statute also covered Massage Therapists). Under the new Health Professions Act (1996) new professional groups can apply for regulation. Examples o f occupational groups applying for self-regulation include midwives, acupuncturists, laboratory technicians, occupational therapists and social workers. Certification restricts the use o f a particular title to individuals who meet specific requirements but does not restrict practice to only those that attain certification. The purpose o f certification is to help the public to identify providers who have met certain defined criteria o f knowledge, skills and abilities. Certification is used in both public and private sector industries. Certification can be attained by statutory (regulatory law) or non-statutory (volunteer) processes and may include meeting a certain level o f education, experience and/or an examination process. An example o f voluntary certification is when a person is certified after a course in reflexology; an example o f government certification is certifying a mechanic to repair specific machinery. Certification can also be used for focilities such as laboratories. Registration is the least restrictive form o f regulation, and provides a register o f people with certain qualifications permitting the use o f a certain title. It does not restrict others fi"om performing similar activities. Registration is used when there is a low probability that the provider could cause harm to the public and it provides no guarantee o f competence or assurance that the individual has met educational or experiential standards. An example o f registration currently being used in health care is that o f an exercise therapist. Structure o f Health Regulation A statute is an act o f the legislature that sets the type and amoimt o f authority to be 17 granted. When proposed legislation is first placed in the legislature it is called a bill; once passed by the legislature it is called an act. The terms statute, act and law are often used interchangeably in discussing legal frameworks. By-laws are ancillary legislation to a statute and are generally administrative and explanatory in nature. They expand the powers of an act by providing the fi-amework for applying the regulatory statute. A by-law is highly enforceable but can be changed more easily than a statute. A by-law is changed by approval o f the cabinet o f the government and passed by the Lieutenant Governor in Council. A rule does not have the same status as a by-law or a provision in the statute and has less authority. A rule passed by the relevant regulatory board is enforceable as law, providing that the making o f the rule is specifically authorized within the statute. It is difficult to determine what should be a by-law or a rule. The common process for determining this is to evaluate the level o f importance o f the subject matter, the level o f risk, and the need for evolving changes to occur within appropriate time frames. By-laws potentially take longer to change because they require approval o f cabinet. Although the Provincial Cabinet in B.C. usually meets once a week, accepting a bylaw onto the Cabinet agenda can be a slow process dependent on the prioritization of items to be included on the agenda. Agenda changes can occur to deal with emergent or crisis items. Standards guide the practice o f a profession and outline the minimal level o f performance expected. They relate to the core areas o f practice and are not subject to frequent changes. Standards are used for many ftmctions including the evaluatmn by individual practitioners of their own performance, the education o f members o f the public, or other heahh-care providers, about the expected performance levels o f care and the regulatory enforcement (discipline) o f a professional’s practice performance. A standard can be formalized, such as those relating to ethical considerations, by being included in a rule or a by-law. This is done to give the regulatory body greater powers o f enforcement. The Code of 18 Ethics for the profession and standards for record-keeping are examples of standards that are usually placed into rules or bylaws. The Code o f Ethics or Codes o f Professional Responsibilities are used to guide everyday decisions in the delivery o f care. They establish that a professional is accountable for his or her actions, including the responsibility to practice within his or her own level of competency. A Professional Code of Ethics provides a standard o f professional conduct based on principles o f competence, integrity, professional responsibility, respect for people’s rights and dignity, concern for the welfare o f others and social responsibility. Professions may also use clinical practice statements and advisory statements to guide the practice o f the profession. Physical therapists in British Columbia use clinical practice statements and advisory statements approved at the College Board level. The advisory statements provide interpretation o f the standards and the clinical practice statements. The structure of regulation has developed over time and continues to evolve with the implementation of the new regulatory structures set by the Health Professions Act (1996). Historical Summarv o f Earlv Regulation A review o f the history o f regulation shows its consistent purpose has been to protect the public from harm. This has been attained by setting standards o f education and practice. Wiessert (1996) noted the first licensing for health persoimel was for healers in Bagdad in 931 A.D. By 1225 A.D., Frederick H, Holy Roman Emperor, presided over what was probably the first medical practice law. The law forbade the practice o f medicine without a license, included examination by teachers o f medicine, required five years o f academic study (three devoted to the study o f logic), and one year o f practice under the direction o f an experienced physician. It also requfred physicians to provide firee care for the poor and prohibited them fix)m running apothecary shops. Roemer (1993) notes that early in the history o f western civilization, Norman King Roger Q in 1140 ordered that physicians could not practice medicine without being found fit to practice by the Salernitan masters. This was the start o f policy that spread through Europe 19 for training and examinations to be administered by professors in universities. The government also bad a representative on the examination board. In Europe occupational regulation became more prevalent with the development o f crafts and guilds and the establishing o f standards for producing goods and services o f high quality in order to maintain and increase the market share of producing groups. Protecting the market share and the standards o f quality o f goods and services continues to be a component o f occupational regulation today. Physicians, lawyers and notaries were the first professions to convince governments o f the need to protect the public and be granted self-regulating licensing laws. The Royal College o f Physicians was chartered in 1S18 and authorized to grant licenses. The Medical Act (1858) is reported to be of major importance in the development o f medicine in Britain. This Act established the General Medical Council and required this council to publish a register o f qualified practitioners and to protect the public from incompetent practitmners. “This act was framed as protecting the public but critics at that time argued that the profession derived significant monopolistic advantages from registration and the profession knew this from the beginning o f their campaign for registration.” (Waddington, 1994, p. 152). In Canada, the first occupational regulation was enacted in the Quebec Ordinance o f 1788 “to prevent persons practicing physic and surgery in the province o f (Quebec or midwifery in the towns o f Quebec and Montreal without a license” (MacDermot, 1975, p. 12). When Canada became a nation, the Constitution Act (1867) gave the provinces the responsibility for providing their own health care services. In British Columbia, the Medical Act (1886) established the College o f Physicians and Surgeons o f British Columbia. Other Acts allowing professions to attain early regulation include the British Columbia Registered Nurses Act, passed in 1918; the Chiropody Act o f 1929; the Chiropractic Act o f 1934; and the Naturopathic Physicians Act of 1936. Regulating physiotherapists in British Columbia began in 1936, under the Naturopathic Physicians Act. 20 In the United States, regulating occupations began in 1639 in Virginia, with regulating fees charged by physicians (Berry & Brineger, 1990 in Weissert (1996). The first legislation requiring medical practitioners to take licensure exams was passed in the 1760’s in New York and New Jersey. Over the next few years most other states followed their lead. In 1889, a U.S. Supreme Court decision. Dent v. West Virginia, upheld that state's right to deny a practice license to a physician without state approved credentials. The court’s decision summarized the rationale for state regulation o f health professionals. “The power o f the state to provide for the general welfare o f its people authorizes it to prescribe all such regulation as in its judgment will secure or tend to secure them against the consequences o f ignorance and incapacity as well as o f deception and fi-aud" (Gross as cited in Weissert, 1996, p86). Review o f Provincial Repulatorv Changes A review of the current regulatory changes occurring in Canada reveals that all provinces are moving towards the implementation o f a uniform regulatory structure. Ontario Ontario’s public policy implemented with the Regulated Health Professions Act (1991) and the profession-specific acts that are its companion pieces set many precedents now seen in other Canadian provinces. A major impact on public policy relating to the regulation of professionals in Ontario was the 1968 McRuer Roval Commission Inquiry into Civil Rights. Volume Three, Section Four was devoted to the professions. The purpose o f regulating a health professional was reaffirmed as: The granting of self-government is a delegation o f legislative and judicial functions and can only be justified as a safeguard to the public interest. The power o f selfgovernance must not be extended beyond the present limitations unless it is clearly established that the public interest demands it and that the public interest could not be adequately safeguarded by other means, (p. 1209) The Commission recommended the inclusion o f lay representation on the boards, Lieutenant-Governor-in-Councü approval o f professional regulations and establishment of due process in the procedures and actions o f professional governing bodies. 21 The McRuer Report, the Committee on Healing Arts, and the Ontario Law Reform Commission, which later became the Professional Organization Committee (POC), influenced the Minister o f Health in 1983 to establish the Health Professions Legislation Review. The 1980 report o f the Professional Organizations Committee did not deal speciflcally with health professions but covered the structure and processes required for public accountability for selfregulating professions. The report covered what should be in a statute, what should be in regulations subject to Lieutenant-Govemor-in-Council approval, and what should be in a rule set by the regulated profession. The review recommendations were put forth in the report Striking a New Balance: A Blueprint for the Regulation o f Ontario’s Health Professions (1990). This report led to the Regulated Health Professions Act (1991), an Act that is a departure from the previous patterns of self-regulation in Ontario. Bohen (1994) states that the intent of the Regulated Health Professions Act (1991), proclaimed in 1993, is to make more efficient use o f all health professions without compromising public protection. The Act strongly recognized that the purpose of professional regulation is the protection o f the public and not the interests o f the profession. The Ontario regulatory reform signiflcantly changed the way in which a scope o f practice was defined. The scope o f practice definitions are now designed to allow more freedom o f choice for the consumer, to recognize overlapping scopes o f practice and to reduce exclusive control by any profession. Other changes included public representation on the boards and three new statutory committees o f Quality Assurance, Patient Relations and Fitness to Practice. The responsibilities o f the statutory committees are to ensure continuing competency o f the regulated professional and to prevent patient abuse. Quebec and Other Canadian Provinces In Quebec, corporations are given the privilege o f self-regulatfon. Corporations are 22 equivalent in duties and functions to Colleges/ Regulatory Boards and Registration Boards in the other provinces. The first corporations were created in the mid-eighteenth century for notaries, doctors and lawyers. Reform o f the professional system in Quebec began in the 1960s as a means to provide protection for the public, establish standards o f quality in professional practice and identify certain professional groups by statute. In 1966 the Quebec government set up a Commission o f Inquiry on Health and Social Welfare (the CastonquavNepvue Commission) and this commission identified the need for changes in the framework o f professional regulation. The initial Castonquay Report was released August 29,1967. The subsequent report, the Report of the Commission o f Inquirv on Health and Social Welfare (The Castonquay Report, Quebec, 1970) was devoted to the examination o f “The Professions and Society”. The report identified the problems o f accountability and o f multiple professions being regulated with no consistency in their laws. The report identified the need for professional regulation to come under closer state supervision. However the report also recognized the essential role that professional regulatory bodies performed in protecting the public. It was recommended that government develop a mixed system that was neither totally independent nor state managed, where the privileges and powers accorded to the professions were balanced and managed under a new structure. This structural change included a minister responsible for application o f professional laws, a new inter-professional council, and the appointment to the corporations of directors to represent the public. In 1973, a professional code and 21 related bills identifying 38 professional Corporations were enacted. Protection of the public is the overriding goal for establishing Corporations in Quebec. Corporations are assigned reserved titles, and have the power to draw up regulations respecting the conduct of business, the training required o f members, and the criteria for acceptance into the profession. The professional code (the law) requires Corporations to make annual reports; carry out periodic assessments by inspectors to make sure their members are competent; and have discipline committees to hear complaints from consumers such as 23 complaints on fees, misconduct and professional secrecy. The corporations are monitored by government, and are public agencies answerable to society. The overseeing body is the Office o f the Professons. Other Canadian provinces are also undergoing regulatory reform similar to what has occurred in Quebec, Ontario and British Columbia. In Alberta, the Special Committee o f the Legislative Assembly o f Alberta on Professions and Occupations, Report 1, April, 1973 and Report 11, December, 1973 (Alberta, Government of, 1973) and Government o f Alberta, Policy Governing Future Legislation for the Professions and Occupations (Alberta: Govenunent o f 1978) recommended the formation o f a Health Workforce Rebalancing Committee. The committee mandate is to recommend to the government regulation that is consumer focused, affordable, accountable and to apply principles o f public protection similar to the policy directions established in Ontario, British Columbia and (Quebec. Other provinces are in various stages o f regulatory reform. The direction o f change is consistent with the changes that have occurred m Ontario and British Columbia. The territories, including Nunavut, do not currently have legislation to regulate the licensure of physiotherapists. The Health Professions Act was passed in Alberta in May 1999. The College of Physical Therapists o f Alberta will fell under the Health Professions Act by December 31, 2002. The Manitoba Law Reform Commission, in October 1994, recommended the establishment of a delegated common legislative framework focused solely on public protection; the Task Force also recommended that the “traditional occupation-based approach to delineating scopes o f practice should be replaced by a task based model...in which tasks and services are regulated, rather than practitioners or occupations” (p.8). The Vbnhoba report referred to the need to do a cost benefit anah^sis as part o f the decision-making process on whether or not a profession should be regulated. The analysis was to determine whether the costs o f regulating a professfon were justifiable in relatfon to the benefits attained in public protectiofL 24 Summary This chapter defined a health profession from a regulatory perspective, defined the structure of professional self-regulation and provided a historical and current summary of self-regulation o f health professionals. The next chapter will provide a summary o f current forces influencing the regulation o f physiotherapists in Canada in general and British Columbia in particular. An understanding o f the forces influencing the implementation of regulation assists in identifying why the new regulation is being implemented and whether the new structure has the potential to be accountable in meeting the objective o f public protection. 25 CHAPTER THREE ENVIRONMENTAL SCAN This chapter provides a summary o f the forces perceived as influencing the regulation of health care professionals, specifically physiotherapists. In particular the chapter will illustrate the interplay between regulation and social, financial, professional, educational and legal influences on policy directions for self-regulation o f the professions. The summary is compiled fi-om a range o f sources, including workshop discussions, press and journal articles, and discussions with colleagues in health care. The basis o f this summary was taken from a strategic planning session held March 1998 in Toronto, Ontario by the Canadian Alliance o f Physiotherapy Regulatory Boards. Participants attending this planning session represented physiotherapist regulators from across Canada. To Regulate or Not The debate as to whether professional self-regulation provides for public protection or gives advantages to the regulated professions has existed since the first establishment of professional self-regulation. Waddington, (1994) noted this in the early history o f medical regulation occurring in the 1850s in Great Britain. There are inherent costs and benefits to professional self-regulation. Governments enact regulations emphasizing the public’s need for accessibility, accountability, equity, quality of care and protection from harm. However regulation can be seen to promote professional self-interests and protect **turf’ through the use o f restrictive scope of practice definitions and by the establishment o f entry to practice and credentialing requirements. Regulated professions ensure uniform and high standards o f practice, codes o f ethics and ongoing monitoring o f competence but they may also impose artificial barriers on interdisciplinary practice, limit safe patfent choices and protect the professional’s ability to earn income. O’Niel, Finnocchio, and Dower (1996) summarize the criticisms o f self-regulation in their statement: ...although health profession regulation served the health care system and its consumers well in the past, it is out o f step whh current health needs and expectations. 26 As a resuh, the regulatory system is now being criticized for increasing costs, restricting managerial and professional flexibility, limiting access to care, and for being equivocally related to quality. Perhaps most seriously, regulatory bodies are perceivôl as largely unaccountable to the public they serve, (p. 97) The main issue to consider in determining the need for regulation is whether there is sufficient need to protect the public, and if so, what kind o f regulation is appropriate? Determining appropriate regulation occurs in a highly political environment, with much debate on the degree o f legislative control needed to adequately protect the public. Weissert (1996) points out that while traditionally there has been little overlap between the world o f the health professions and the discipline o f political science, the regulation o f health professions is a highly political issue. After establishing the need for regulation there are various regulatory options available for governments to use: the setting of standards, regulating input by setting o f certification or licensure and external regulation by the state or self-regulation o f the profession. Each regulatory option has advantages and disadvantages. In describing how different regulatory options are chosen Trebilock, Tuhoy, and Wolfson (1979) state: The selection o f regulatory options requires the application o f priorities and weights across various interests and principles... These are a matter o f judgment, to be defended and debated, and ultimately to be resolved by government authorities in flaming the legislation, (p. 85) Another consideration in determining whether or not to have self-regulation for the professions is the courts’ consistent determination that the professmnals themselves are best qualified to pass judgment on their colleagues’ professional behaviors including misconduct. The granting o f self-regulatory powers to a profession recognizes that professionals are in the best position to make judgment on tfieir colleagues’ behaviors. Health Care versus Medical Care Health care policy continues to reflect an emerging societal value o f providing health care, rather than flwusing solely on medical care. The way we think about health care has changed flom an illness model to wellness and overall population health, with an emphasis on 27 disease prevention and health promotion. There is increasing evidence that many important determinants o f health lie outside the health care system (e.g. Armstrong & Armstrong, 1996; Decter, 1994; Evans, Barer & Marmor,1994; Pietroni, 1991; Rachlis & Kushner, 1994). For health regulators, the move away from a medical care model towards prevention o f injury and disease affects where health professionals are employed and the type o f services being provided. Traditionally, a major part o f physiotherapy services was care for the consequences o f illness and disability and physiotherapists were primarily employed by hospitals. The shift in society to an increased emphasis on wellness and prevention o f illness and disability is resulting in expansion of the scope o f practice and the competencies required by physiotherapists. For example physiotherapist are now being employed in industry where they are providing strategies for ergonomic prevention o f injury. A range o f literature from different disciplinary perspectives including sociology (Friedson, 1970; Starr 1982), political science (Fulton, 1993; Savan, 1989; Toubnin, 1986; Pietroni, 1991), and economics (Evans, 1983; Jerome-Forget, White & Wiener, 1995; Rodwin, 1993), describes the medical model with reference to the hierarchy o f health care professionals, with the physician at the top. Fulton (1993) describes how change in the delivery o f health care is occurring and with this change the autonomy, status and power o f physicians is collapsing. In reference to the new health professions legislation he states: The new health professions legislation in Ontario (consisting o f 26 separate statutes), which impacts the province in 1993, embodies principles and mechanisms which permanently change the relationships o f health care professionals, (p.235) Peitroni (1991) and Cobum (1999) describe how the attainment o f self-regulation changes the relationships among health professions, and more specifically challenges physician autonomy. The implementation in regulation o f open scope o f practice definitions and the expanded knowledge, skills and abilities o f a wider range o f health care providers are also changing the relationships between professions. 28 Knowledge and Technology The continuing expansion o f knowledge affects the scope o f practice o f health professionals and the determination o f who is qualified to apply the new knowledge and advances. The continuing growth o f knowledge heightens the need for regulators to address the issue of how to ensure continued competence o f professionals throughout the lifespan of their careers. Access to knowledge is more readily available with the continuing development of access to communication technologies. An example o f a new communication technology affecting the regulation o f heahh care professionals is the development o f telehealth. In a telehealth system a client could receive medical advice by telephone or perhaps the internet from a practitioner anywhere in the world. A concern for regulators regarding teleheahh is provision of services by a health care practitioner who is not registered in the province o f the consumer who receives those services. The question o f the need to regulate telehealth services gets to the heart o f whether or not regulation is required for public protection. At present in both Canada and the United States, regulatory responsibility lies with the province or the state for regulatory jurisdiction over the health professional. How or if regulation will be enacted to address regulatory issues o f privacy, patient safety, efficacy, ethics, quality o f services, and legal and economic implications across jurisdictional areas has not yet been determined. Prompted by the issues raised by the implementation o f new communication technologies a shift may occur from professional regulation to more consumer responsibility for choice of care and reliance on marketplace competition. Changing Population and ProvWer Demographics An aging population and expanded ethnic diversity is changing the demand for health care services and the type o f care wanted. Additionally, it appears that consumers are increasingly asking to be involved in decisions related to their care. One approach governments use to control the costs o f health care is to increase health education to 29 consumers and place increased responsibility on the consumer to make informed choices. It is possible that informed consumers will increasingly utilize the regulatory complaints and discipline processes to enforce the quality and efiectiveness o f care being delivered. In regards to the demographics o f physiotherapists there are several indicators o f a potential shortage o f qualified physiotherapists. The registration statistics for physiotherapists currently employed in British Columbia shows that many o f those currently employed are nearing retirement. A short%e may result in pressure for regulators to lower the qualifications required to practice the profession and/or changes in the type o f services the profession provides. The Alliance of Canadian Physiotherapy Regulatory Boards National Human Resource Data (1997) reported that there are 2,258 physiotherapists in British Columbia, 58.4% of whom are between the ages o f 35 and 54 years, and 26.5% o f whom are between the ages o f 45 and 54 years. These data indicate that over the next ten years a significant number o f physiotherapists may be retiring &om practice. Another interesting statistic to consider when determining a possible shortage is that 81% o f the practitioners are female, which may affect the availability o f physiotherapists if these women are off work for hunily reasons. Another change occurring for physiotherapists and other health care providers is that other care-givers are now providing services that were traditionally in the scope o f practice o f the physiotherapy profession. An exanqsle o f this includes therapeutic exercise being prescribed by kinesiobgists and exercise therapists. Trujillo, Beggs, and Brown (1996) discuss how, for physiotherapists, there is a shift from the traditional health delivery approach to using support personnel for rehabilitation services previously provided exclusively by professionally-qualified practitioners. This is seen as cost effective and is supported by the legislative changes in regulation o f health professionals. Currently, support personnel are unregulated; this is o f concern in regards to public protectbn. For safe and effective care, the consumer needs to be able to assess the qualifications of the service provider or to rely on public protectbn policies such as self­ 30 regulation. One aspect of public protection for physiotherapists and other health professionals is the development of standards for transfer o f ftmctions to another care-giver. Regulation o f a profession applies only to the regulated professional, not to the person to whom a ftmction may have been transferred. The scope o f work a support person can provide is guided by the current changes in regulation defining scopes o f practice, including the definition of supervised acts and reserved acts. The effectiveness for public protection o f using supervised acts is not yet clear. The issues are how to appropriately delegate supervised acts appropriately and how to direct and monitor the activities o f others. Globalization Regulatory barriers to trade are being challenged by the globalization o f the world economy. Regulators are determining bow to apply standards across jurisdictions. Current Canadian policies implemented in response to the effect o f the global economy and increased tolerance for trade are the North American Agreement on Free Trade (NAFTA) and the provincial Agreement on Internal Trade (AIT). AIT makes specific reference to professional services. Regulation o f health care professionals is a provincial responsibility, but there are overriding influences of federal government policies, particularly in the areas o f qualifications to practice and maintenance of registration requirements. These inter-provincial and international trade agreements underscore the feet that regulatory policies and requirements must change to decrease or eliminate barriers to labour mobility and to allow for free movement of goods and services across provincial and international boundaries. There are four potential barriers to the mobility o f physiotherapists identified in AIT: defining scope of practice, entry-to-practice requirements, re-entry-to-practice requirements, and maintenance of registration requirements. AIT includes the principle that professional standards and criteria are to be objectively related to competence and that the level o f competence used is not to be more restrictive than is necessary. As a result, professions, including physiotherapy, must establish definitfens o f competerxy, must assess competence 31 both at the entry level and continuing to practice level, and must document valid standards o f practice. Equhv and Access The actions of a regulatory college are guided by the Canadian Charter o f Rights and Freedoms (April 1982) and by provincial legislation on freedom of information and responsibilities assigned to the Provincial Ombudmen’s Office. Hamilton (1994) states that the principal reason for the dramatic increase in court decisions affecting self-regulating professions is the Canadian Charter o f Rights and Freedoms (April 1982). In the Charter, criminal law principles come into the due process considerations to be used in regulating the professions. The effect o f this is that regulating bodies must balance the responsibility to regulate the conduct o f their members in the public interest against individual professionals’ rights and freedoms accorded by the Charter. The provincial regulations on freedom o f information and the powers of the Provincial Ombudsmen’s office help to ensure that regulatory processes used are applied in a fair and equitable manner. An example o f an equity concern for regulators is the barriers established by regulation for entry to professions or to practice a profession. The entry to practice regulations must be equitably applied to all applicants whether Canadian or foreign educated. Heahh Care Governance Throughout Canada, heahh care governance is moving towards regional models for policy development and the making o f health care delivery decisfons. The Seaton Commission (1991) acknowledged that in B ntbh Columbia there is wide support for an increased emphasis on community-based health care, designed and funded to meet the specific needs o f our commimhies. This emphasis on community is seen in the current policies o f creating regional heahh boards, regional funding and closer-to-home policies for service provisfon. The regional governance model is based on the assumption that health care delivery will improve whh more input and ownership o f decisions at the community level. 32 Associated with this shift to regional governance is a shift fi:om institutional care to care provided within the community. The move to a regional governance model and changes in the location of service provision means there is a need for regulators to work with the regional and local governing bodies to ensure understanding and consistent application o f professional standards. Health Care Funding Canada’s publicly funded health care system was established under the policy directions for health and health care set by the Canada Health Act (1984). This act reaffirmed the program criteria for public health insurance set by the Hospital Insurance and Diagnostic Services Act (1957) o f universality, accessibility, comprehensiveness, portability, and public administration. Universal health care funding covers only a portion o f heahh care services; thus heahh care ftmding in Canada is a hybrid o f private and public funding. Currently, changes in funding are occurring as a resuh o f policy moves toward cost containment. The conflict is between controlling costs while retaining or enhancing quality and access. Jerome-Forget, Whhe and Wiener (1995) propose that health care reform be influenced by two concerns; the total cost o f care and whether the care given is provkling value for the money spent. Evans (1983) discusses how the link between different systems of regulation and funding has an impact on the effectiveness, efficiency, and qualhy o f services. Regulators o f self-regulating professions are responsible for ensuring that the ethics o f the profession are maintained and that the standards o f care are appropriate for public safety, quality, and effective care. There is potential conflict for professionals and funders o f heahh care in the determination o f which services can be provided whhin the resources available and yet still be effective and o f a high quality. Authors (Dixon, 1997; Duncan, 1990; Evans 1983) note that regulation sets restrictions on the ability o f market forces to establish the scope and quality o f heahh care delivery. In a conqiethive market there is more o f a "buyer beware” reliance on the consumer 33 to make correct health care choices and this reliance means the public must be able to discern who is best qualified to provide conqpetent and valid care. Just how the public will develop an understanding o f who is best qualified to provide this care has not yet been determined. Currently, the government only regulates some professions and thus the public will need to develop an understanding o f the differences between regulated and non-regulated care providers. Both private and public funding o f physiotherapy services are changing with the development o f new reimbursement policies. Examples of new payment or compensation models include managed care, preferred provider contracts for services, and the use o f multi­ skilled and multi-disciplinary practices. There is also a shift towards a user pay approach where the consumer directly pays for the care they are receiving. These changes raise challenges o f balancing the autonomy o f professional judgment to provide care, the quality of care the consumer wishes to have, and the fiscal goals o f the payer. The health care practitioner is faced with conflict o f interest situations between the goals o f regulators and funders. An example o f where potential conflicts are created is in the use o f incentive payments to decrease the level o f services being provided or for returning a client to work within a certain time frame. When a physfetherapist’s decisions have the potential o f being Influenced by self-interest, such as gaining more income by reducing care, there is a potential for not acting in the patient’s best interests. With funding models that force practitioners to choose between honoring their responsibility to the client and honoring their fending contracts, ethical standards are becoming increasingly more difficult for practitioners to honour. In order to protect the public, regulators must answer the ethical question o f whether professional judgment may be influenced by incentive payments. Competent Providers Regulating health care professionals includes the responsibilities o f establishing and ensuring qualifications for entry to practice and continuing competency requirements 34 throughout the career o f the professional. Influences such as globalization, the Canadian Charter of Rights and Freedoms, and provincial human rights and equity legislation have made it necessary for regulators to rethink their approach to defining the qualifications which health professionals require in order to be registered. The methods o f evaluating the knowledge, skills and attitudes o f a health professional are evolving in many professions, including physiotherapy, to an approach based on defining competency. This is a shift from assessing performance based on credentials to competency-based evaluations. For physiotherapists this has meant the development o f an inventory o f entry level to practice competencies and the national competency examination. Using a competency-based approach in education, evaluation, or regulation requires understanding the terms competence, competency and competencies. Glover-Takahashi (1997), in her development o f the competency examination process for the Alliance, provided the following sununary: The concept o f competence is multi-dimensional and somewhat ambiguous. (Ellis, 1988, p. 47). Although there are many definitions of competence and competencies in the literature (Parry, 1996; Curry & Wergin, 1993; Jamison, 1993; Gilbert, 1978), there is widespread agreement that competencies are a group o f interrelated elements, including the possession o f knowledge, skills, and attitudes enabling an individual to perform fully and assume the role o f a specified position. Other elements o f competence suggested include capabilities, adaptability, aptitudes, judgments, and values, (p.5) Physiotherapists in Canada use the following definition o f competency in establishing their entry level and continuing competency requirements: Competency is defined as a cluster o f related knowledge, skills, attitudes and judgment that affects a major part o f one’s job (a role or responsibility) that co-relates with performance on the job, that can be measured against well accepted standards, and that can be improved by training and development (adapted fix>m Parry, as cited by GloverTakahashi, 1997). Defining competency is affected by evolving forces, including the role and functmns o f accreditation o f health care services, regulations implementing shared scope o f practices, and the changes occurring in the education o f care provklers. Physfetherapy educatfen is 35 adapting to the forces of equity, accessibility, accountability and cost effectiveness. Maintaining quality o f education with reduced resources is a challenge for educators and, indirectly, for regulators. Regulators are increasingly working with educators to define competencies and to ensure that education is relevant and incorporates new knowledge. There is also change occurring in the education o f physiotherapists. In the United States, there is a move towards a master’s degree as the entry level to practice qualificatwn. Some universities in Canada are also in the process o f moving to the granting o f a master’s degree in physiotherapy. Graduation fi-om an accredited university program is a regulatory requirement for licensure in Canada. Thus this change in education will impact regulatory standards for entry-level qualifications, the accreditation process used for Canadian schools, and the mobility o f Canadian trained physiotherapists for employment in the United States. Accountabilitv There are many aspects o f accountability affecting the development o f regulatory policies, including accountability to the public for both the prudent use o f resources and the outcome or result of the services being provided. Bohen (1994), in describing regulatory changes occurring in Ontario, stated that: By the 1990s, the government’s faith in the belief that regulated health professions delivered better health care was flagging. The new regulatory fiameworks are resulting from governments realizing that regulators require at the least, new mechanisms for ensuring the provision o f appropriate, effective and high quality care (p. I). The move towards regulatory boards having greater accountability for their actions has resulted in the appointment o f public members to regulatory boards and updating of regulatory statutes to ensure a consistent and clear process for establishing bylaws, rules and regulations. 36 Summary This chapter provided a scan o f the forces currently perceived to be influencing policy decisions for regulating all health professions, and in particular for the physiotherapy profession. One cannot examine the effect o f health professional regulation on the regulatory objectives o f public protection and enhancement o f health services without considering the link between professional regulation and the range o f social, economic, and political factors that affect the delivery of health care. The current regulatory changes for health care professionals are being shaped by these forces. Chapter Four will detail the process of regulatory change in British Columbia for the physiotherapy profession. 37 CHAPTER FOUR REGULATION OF PHYSIOTHERAPISTS IN BRITISH COLUMBIA Identifiriny the Need for Regulatory Changes Earlier reviews o f health care (Foulkes, 1973; Hastings, 1972; Seaton, 1991) show that many o f the regulatory changes implemented in the Health Professions Act (1996) had been under consideration for some time. The Hastings Report, released in July 1972, recommended the development of community health centers. The report noted that changes in professional statutes were needed as the current powers established by regulation limited the use o f a wider range o f health providers and the expanded use o f professional expertise. The Report recommended that professional self-regulation should have the sole purpose o f public protection and should not advance the interest o f the professions. The rationale for this recommendation included the identified conflict between professional self-interest and public protection, and the many professional and technical groups who had strongly expressed that their skills were not being used. The report criticized the self-interestedness o f professions, especially the medical profession. When addressing this issue, the authors o f the Hastings Report recommended that lay or public members be on regulatory boards and that scope o f practice definitions be changed from rigid and exclusive to more open and allowing of a wider range of health professionals being able to provide services. This report also recommended that the legal roles, responsibilities and functions o f regulation be as uniform as possible across Canada. Recommendations from the Hastings Report incorporated into the Health Professions Act (1996) include the appointment o f lay or public members to regulatory boards and the development o f less fixed and rigid roles in scope o f practice definitions for health professionals. Following the Hastings Report (1972), the report o f Richard 0 . Foulkes, Health Securitv for British Columbians (1973), noted that professional regulation in B.C. was 38 fragmented, chaotic, and In some cases, obsolete. The Foulkes Report’s (1973) recommendations were consistent with those o f the Hastings Report in advising the removal o f barriers to educational and professional advancement o f personnel in the health care system. Both reports outlined the need for specific, well-defined regulation o f health professionals in order to meet the overriding goal o f public protection. The Foulkes Report again confirmed the sole purpose o f regulation to be protection o f the public and that there must be a clear separation in the roles and functions o f professional and regulatory associations for this to be achieved. The Foulkes Report recommended that regulation be granted to health professions only if there is a clear danger to public safety. The report further recommended the abolishment o f excessively restrictive and narrowly defined scope o f practice definitions used by health professions. The 14 recommendations in the Foulkes Report were summarized in the Special Report: Consumer Participation. Regulation o f the Professions, and Decentralization prepared by J.T. McLeod (1973, pp.45-47). The Foulkes Report’s recommendations included that the government review all existing legislation dealing with health professions, establish a Health Disciplines Regulation Board with the power to revoke regulations made by professional colleges, and add lay or public members to regulatory Colleges. It was recommended that the Health Disciplines Regulation Board be composed of appointed members with a full-time chairman. The recommendations o f the Foulkes Report (1973) were further developed in the British Columbia Royal Commission On Health (1991) report (the Seaton Commission) which again confirmed that: ...the purpose o f self-regulation is to protect the public from preventable harm. This privilege is granted to a profession by the provincial legislature. It is a social contract between the profession and the public. It is the property o f the public the profession claims to serve, (p. D-29) The Seaton Commission (1991) noted the lack o f consistency among the 16 provincial acts in British Columbia that governed health care professions. The recommendations o f the 39 Seaton Commission (pp. D-29 to D-37) included repealing the Health Professions Act (1994) and revise the Act to become an umbrella act regulating all o f B.C.'s health care professionals. The Seaton Commissk>n recommended establishing a Health Professions Council responsible for determining if a regulatory college should be established by a health profession. The Seaton Commission also recommended adopting the approach recently taken in Ontario and echoed the Foulkes and Hastings Reports in a recommendation to define scopes o f practice in non-exclusive terms with narrowly defined reserved acts. The objective o f using open scope of practice definitions is to decrease the barriers established by professional regulation in the utilization o f the skills o f heahh care providers. The Seaton Commission defined reserved acts to be those tasks or services that present a significant risk to the public. Physiotherapists participated in the public hearings held by the Seaton Commission. They informed the Commission members o f the need for new legislation for physiotherapists in British Columbia. The Regulation of Phvsiotherapists in British Columbia Regulation o f physiotherapists in British Columbia began whh regulation under the Naturopathic Physicians Act (1936). The professional association for physiotherapists was involved whh influencing the development o f regulatory legislation for physiotherapists. The provincial branch o f the Canadian Association o f Massage and Remedial Gymnasts was formed on February 10,1927 and the first annual meeting was held on June 7,1927 (personal communication with H. Southard, a physiotherapy member attending these meetings and minutes). The national association had been granted a charter on March 24,1920. It is interesting to note that the professional association and the regulatory boards that were initially formed included both massage and physiotherapy professions. This early association 40 later became the Canadian Physiotherapy Association (CPA). The early minutes show that physiotherapists wished to stand alone as a profession and not be regulated by another. Southard’s summary indicates the first hints o f legislative problems occurred in 1936 when the new Medical Insurance Act was to come before the legislature. The 1937 Canadian Physiotherapy Association Annual Report in reference to British Columbia stated: 1937 will go down in the history o f C.P.A. as a banner year. The narrow escape fi:om being absorbed by the Naturopathic Physicians Act amendment was all too close for comfort. Doubtless it will arouse in the members o f this association an appreciation o f the necessity o f being strongly organized, not only to protect our own interests, but to preserve the highest standards o f training a id medical ethics and loyalty to each other (no pg.#). The details on the amendment are sketchy but the annual report noted the amendments to the Naturopathic Physicians Act passed in 1936, amended in 1937 to include registration of physiotherapists and masseurs came to the provincial house in November 1937. (see appendix A). A committee o f the British Columbia branch o f the Canadian Physiotherapy Association held an intensive campaign o f letters and interviews and involved members o f the medical associations, officials o f the then Workman’s Compensation Board and legal assistance so as to influence the legislation to exclude physiotherapy fixim being controlled by the Naturopathic Physicians Act. By order-in-council on November 30* 1948, annulment o f the 1937 clause in the Naturopathic Physicians Act (1938) relating to physiotherapy was attained. Legislation covering physiotherapists and massage practitioners was attained with the enacting o f Physiotherapist and Massage Practitioners Act S B C. 1946, c.59. This act established the Association o f Physical Thenqpists and Nbssage Practitioners o f British Columbia. (A.P.M.P.). The establishment o f A.PM.P. created a board responsible for regulating physiotherapists and nassage practitioners. For physiotherapists this established 41 separate regulatory and professional associations. Not all professions have this division o f responsibilities within the structures of their associations. The Physiotherapist and Massage Practitioners Amendment Act, 1954 c.32, renamed the Board of the Physiotherapists and Massage Practitioners, as the Council o f Physiotherapists and Massage Practitioners (the Council) and gave it the power to make regulations respecting applications, cancellations, suspensions, and reinstatement of members. The Council was also given the authority to approve schools teaching physiotherapy and massage. Attaining authority reinforced the Council's regulatory power for establishing the qualifications required for licensure in the profession. The definitions o f registered physiotherapist and masseuse were altered to give registered physiotherapists and masseurs exclusive rights to practice in their respective fields. The Physiotherapists and Massage Practitioners Act (1946) created an unfair structure for the Council o f the Association of Physiotherapists and Massage Practitioners, as it designated that the Council be composed o f six physiotherapy members and three massage practitioners. This allowed members o f one profession voting power over the other profession. Three membership categories were created under the act: Chartered Physiotherapists, Registered Physiotherapists and Massage Practitioners. Chartered Physiotherapists were members o f the Canadian Physiotherapy Association. The educational requirement for licensure with A.P.M. P. was a four-year baccalaureate degree in physiotherapy from the University o f British Columbia, finm another university in Canada, or equivalent qualifications from outside Canada. Chartered Physiotherapists were not to practice except under the prescription, supervision, or direction o f a medical practitioner. Chartered Physiotherapists had three members sitting on Council and were called 42 Part One. The ability to work only under prescription o f a physician is an example o f where physiotherapists were subservient to another profession. The attaining o f regulation under the Health Professions Act removed this requirement. The Registered Physiotherapists section developed as a result o f the demand for patients &om the war to be treated. To resolve the personnel shortage, a shortened course o f training had been established in England. The educational requirement for Registered Physiotherapists was completion o f a three-year course with a specific number of hours o f instruction, clinical experience, and successful completion o f an examination specified by the Board of Examiners. Registered Physiotherapists were allowed to practice by direct access or without a medical practitioner referral. Registered Physiotherapists had three physiotherapy members sitting on Council and were called Part Two. Massage Practitioners graduated from a specified school of massage therapy approved by the Council o f the Association o f Massage Practitioners and Physiotherapists. Until 1994 there was one private school of massage therapy in British Columbia, which offered a twoyear course. Massage Therapists had three members sitting on Council and were called Part Three. Parts One, Two and Three were also called Sections. The Act regulating physiotherapists and massage practitioners was modified in 1972 to incorporate the educational requirements and standards for the physiotherapy profession set by the professional association, the Canadian Physiotherapy Association. This established a professional associatmn role in determining the educational standards for the profession. By 1972, the Chartered Physiotherapy section recognized that there were no regulations outlining a disciplinary process for their members. Complaints about the competence o f a member could be received but the legal process and ability for disciplining 43 members found guilty was not specified by the legislation. By 1976, the Minister o f Health had acknowledged physiotherapist requests for updating their legislation and requested input from the general membership. Although physiotherapists responded to the Minister o f Health’s request, only minor legislative changes were made until physiotherapists became legislated under the Health Professions Act (1996). In 1979, the statute was renamed the Physiotherapist Act, R.S.B.C. 1979, c.327. By this time, the statute governed the professions of massage therapy, physiotherapy, and a small group o f remedial gymnasts. Remedial gymnasts were an occupational group that had trained in Great Britain and by the late 1970s this training course had been discontinued. Physiotherapists were requesting that the government grant them their own statute. They wanted massage practitioners and remedial gymnasts to be covered by other legislation or to be in closed subsections within the statute regulating physiotherapists. Closed subsections would mean no further memberships would be granted; the current members could either upgrade to physiotherapy qualifications or retain their current registration but be limited in their areas of practice. By 1983, there had been several ministers o f health but no legislative changes. The physmtherapy regulatory board’s ability to discipline members had been tested in the legal arena and was found to be seriously wanting. Serious discipline problems had arisen which were incapable o f being resolved with the existing legislation. The Health Statutes Amendment Act, 1987, c.SS, and subsequently the Health Professions Amendment Act, 1989, c.29 created a separate closed register for remedial gymnasts. This meant the limited number o f remedial gymnasts practicing in British Columbia could either write the Registered Physiotherapist examination and upgrade to full physiotherapy membership or stay on a separate register until their retirement from practice. 44 A more significant change occurred with the Health Pro&ssions Amendment Act (1989). This change was to revise the qualifications required for registration o f physiotherapists. The change enabled the Minister o f Heahh to more readily change the educational requirements for registration. A review of the Council minutes, newsletters, and correspondence with the Ministry o f Health reveals this significant change was made because o f the critical shortage o f physiotherapists, particularly in northern and rural areas o f the province. Physiotherapists were concerned because they felt the government would have the potential to allow inadequately trained physiotherapists to work by circumventing the qualifications and examination process. To avoid the government determining who was qualified to be registered to work as a physiotherapist, the Council proposed the use o f a temporary register to allow foreign-trained therapists to work while completing the required examination process. The Council emphasized that it did not want regulations changed to allow temporarily registered therapists to avoid meeting the equivalent to the Canadian educational standards. The establishment o f the temporary registration process helped alleviate the shortage o f physiotherapists but also raised public protection and ethical questions. A therapist granted a temporary license did not have equivalent qualifications but was allowed to work, often in sole practice positions, with the same responsibilities and liabilities as a fully registered therapist. Temporary registration was granted while the therapists completed their educational requirements. They became full registrants once they had successfully passed the qualifying examination. Some therapists with temporary registration worked for up to two years and either did not complete their education or foiled the examination. This raised the question o f whether there was increased risk o f harm to the public by not having enforced the fiill 45 registration requirements at the onset. For example, a physiotherapist with a temporary registration was able to practice and later deemed ineligible for registration if he or she did not successfully complete the examination process. When this situation occurred it is reasonable to conclude that the licensing board was not fulfilling its mandate of public protection. The Chartered and Registered Physiotherapists Sections continued to ask the government for updated legislation to join the two sections and to grant disciplinary powers to the Sections. By 1988, the Ministry o f Health again requested that physiotherapists develop and submit the needed changes to their legislation. In August 1988, the Chartered and Registered Physiotherapy Sections submitted to the British Columbia Department of Policy and Planning, Ministry o f Health, a draft o f new legislation covering the act, rules and bylaws. The draft legislation incorporated the structure and principles of having a College of Physiotherapists governed by a Board composed o f provincial representation as well as lay or public representatives. The proposed legislation included inquiry and disciplinary procedures that would ensure protection o f the public by defining standards o f practice and defining qualifications for entry, re-entry, specialization, and continuing education The following list fi'om the October 1990 minutes o f the Chartered and Registered Physiotherapy legislative committee summarizes the reasons for asking for updated legislation for regulating physiotherapists. The October 1990 minutes noted that legislation in B.C. is different from other provinces in Canada in two major aspects: 1. The Physiotherapy Act regulates the practke o f two distinct professions o f Physiotherapy and Massage Practitioners. The Act was labeled for one profession, the Physwtherapy Act (1946). Another profession, the Massage Practitioners, was hidden 46 in the Act. 2. The Act provided for the registration o f two groups o f physiotherapists under separate parts. The distinction between Chartered and Registered Physiotherapists had become an artificial distinction when the shortened post war course to resolve manpower needs was discontinued. There was no longer any difference in education and qualifications between Chartered and Registered Physiotherapists. The only difference between Chartered and Registered Physiotherapist was that the Physiotherapy Act (1946) allowed Registered Physiotherapists to treat patients without a physician’s referral. Physiotherapists had begim to ask for this direct access to primary care for all regulated members, (no.p.#) Amalgamation o f the two parts under a common act would establish administrative efBciency, eliminate unclear divisions between the Council and the Sections and 6cilitate standardization o f scope and standards of practice, standards for re-licensing and disciplinary procedures. Prior to being regulated under the Health Professions Act (1996), physiotherapists were extremely frustrated with their lack o f regulatory ability to discipline their members. The old legislation was inefficient, time consuming, and resulted in delays in resolving complaints. The regulatory structure o f a Council and Sections meant that a complaint went through a review process at several levels. The lack o f ability under the old legislation to protect the public in a timely and efficient manner was illustrated in the October 1990 brief written by the Chartered and Registered Physiotherapists Legislation Committee. “On January 29,1990 a member pleaded guilty to three o f six charges o f sexual abuse and assault. This was nine years after the first investigation” (p.2). Prior to the Health Professions Act (1994), the existing legislation did not provide mechanisms for public review. In requesting updated regulation, physiotherapists had identified the need for more open policies and procedures to regulate the profession. Physiotherapists proposed the appointment o f lay representatives to the College Board and 47 appropriate committees, including the Discipline Committee, as an important way to increase the accountability o f the actions o f the Board and its committees. Under the Physiotherapist Act (1979), consistency in registration criteria for Canadian trained and foreign trained physiotherapists was not possible. Physiotherapists had identified the need for different classes o f registrants, including the ability to register foreign trained physiotherapists while they upgraded to meet the Canadian standards. In addition, consistent registration criteria were needed for foreign trained specialists, out o f province sports therapists, course leaders and students. Physiotherapists also wanted the new legislation to include provisions for specifying minimum standards o f competency for physiotherapists re­ entering the profession or re-licensing after a lengthy absence. Updated legislation was also required because the workplace was changing. More physiotherapists were moving fiom public practice to private practice. In public practice settings safeguards for public protection such as workplace policies and procedures and accreditation of facilities had already been established. Development o f enforceable standards o f practice including standards for equipment, focilities and business practices were required for private practices. The history of the regulation o f physfotherapists in British Columbia identified the need for updated legislation and by 1989 physiotherapists were informed by the govenunent that to attain new legislation they should consider applying to go under the new health professions legislation. Phvsiotherapists and The Health Professions Act 119961 In 1989, the Ministry o f Health staff from the Policy, Plaiming and Legislation divisfon advised physiotherapists that Bill 91, the Health Disciplines Act (1989), would solve their legislative needs. The Health Disciplines Act (1989) later became BQI31 and was renamed 48 the Health Professions Act (1990). The latest legislation is the Health Professions Act (1996). Physiotherapists involved with developing revisions to the Physiotherapists Act (1979) were surprised with the introduction o f the Health Disciplines Act (1989). Physiotherapists felt a loss of faith with the Ministry of Health for not being informed in the formative st%es o f developing this legislation. As Chair of the Council o f the Association o f Physiotherapists and Massage Practitioners, Dediluke (1989) summarized the resistance to the new act as members feeling misled by Ministry of Health staff. The Health Disciplines Act (1989) looked like our proposed Physiotherapy Act right down to the spelling mistakes, yet we had not been informed o f this pending legislation while we worked on our proposed new legislation. The new legislation included the same duties and Ainctions for the regulatory board, the same structure for establishing the regulatory board and the same inquiry and discipline processes we had proposed. The difference was regulation under uml%ella legislation, covering more than one health profession. This experience contributed to physiotherapists’ resistance to moving under the new act and strengthened the opinion o f physiotherapists that any new legislation such as the Health Disciplines Act (1989) and the later revised Health Professions Act (1996) must include a consultation process prior to implementation o f changes. A legislated requirement to consult would increase accountability by ensuring that a political process o f education and lobbying elected government representatives could occur. Physiotherapists wished to continue with the responsibility o f self-regulation but did not initially accept the use o f umbrella legislatk>n. They expressed concern that umbrella legislation would erode their self-regulating status by grouping them with other professions. They further felt the legislation would increase bureaucratic involvement in the regulation o f 49 heahh professionals. Physiotherapists attempted to argue that the physiotherapy profession had specific and unique characteristics justifying separate legislation. Chritian Reuter, Chair of the Legislative Committee o f the Chartered Physiotherapist Section, in his letter of September 6,1990 to the Members o f the Legislative Assembly in British Columbia (Reuter, 1990), summarized objections to the act and in the concluding paragraphs o f his letter stated: Bill 3 1 is the anti-thesis o f a document on which a self-regulating profession would be based. It places all power outside the health professions and degrades them to the status o f unpaid civil servant who are by their choice o f profession locked into this relationship without escape! As the structure and functions of the Health Professions Act (1990) became more clearly understood by physiotherapists, the advantages o f having current, défendable and enforceable regulatory laws outweighed the fears o f loss o f powers and status if the profession did not have a stand alone regulatory act. Physiotherapists came to accept regulation under the new umbrella legislation. The gaps and inadequacies in the old legislation for physiotherapists could be addressed by being regulated under the Health Professions Act (1990). The Health Professions Act (1990) sets out a template o f delegated regulation for all health professionals in British Columbia. Umbrella legislation is designed to cover many professions and thus provide greater consistency o f regulatory frameworks and uniformity in the application o f government policy. In this delegated regulatory framework, the professfen itself is granted the responsibility for public protection and is responsible for the costs o f regulating the professmn. An advantage o f a delegated regulatory structure as opposed to direct government regulation is the direct involvement o f the expertise and skills o f the professions in administering the regulatory responsibilities. The two new policies of expanded regulatory responsibility for ensuring continued 50 competence and the review and change to defining scope o f practice statements were implemented with the Health Professions Act (1990). These policies were applied to all regulated health professions whether or not they were regulated under the Health Professions Act (1994). Physiotherapists had perceived the Health Professions Council, a six person advisory body appointed by the Minister o f Health under the Health Professions Act (1994), to be another level o f government bureaucracy that would impede self-regulatory actions. As more information was obtained regarding the roles and responsibilities o f the Health Professions Council, physiotherapists became more accepting o f the need for it. The Health Professions Council was given the responsibility to consider and make recommendations to the Minister of Health on the designation o f new health professions requesting regulation and to review the legislative needs and scope o f practice o f all currently regulated professions. Included in the legislative review for all currently regulated professions was a determination o f reasons for maintenance o f separate regulation of a profession or whether the profession should be regulated under the Health Professions Act (1996). By the time both physiotherapists and massage practitioners chose to move under the Health Professions Act (1990) they were aware that other currently regulated professions could receive the same recommendation fiom the Ministry o f Health. Physiotherapists were also aware that in Ontario, all regulated health professions were moved under legislation similar to British Columbia’s. The B.C. Ministry of Health never advised the physiotherapists and massage practitioners that they must go under the new legislation. Instead, they were the first regulated professions to choose to ask the Minister o f Health to be regulated under the Health Professions Act (1996). While coming to the decision to request being regulated under the Health Professions 51 Act (1990), physiotherapists gave extensive feedback on the new legislation. They endorsed the need to have lay/public representatives on the regulatory board and committees but disagreed with the power o f the Minister to appoint up to 50% o f the members on a college board. Physiotherapists were concerned that if the number o f public members was equal to or higher than professional members, the profession would no longer be self-regulating. Also o f concern was the cost of the public/lay member appointments, as the issue o f the remuneration o f public members serving on regulatory boards remained unclear. However, physiotherapists recognized the value of the inclusion o f lay members in the regulatory structure o f the Health Professions Act (1990). Prior to the new legislation, physiotherapists included public appointments to the Discipline Committee and had found the lay member representation to be valuable. The regulatory responsibility to set entry to practice requirements is important because of its effect on the availability and quality o f the workforce in health care. Enforcing entry to practice requirements serves to protect the public by assessing practitioner competencies to safely perform health services. At the same time the profession may gain advantages by controlling the number o f qualified practitioners able to meet the entry to practice requirements. A shortage or a restriction in the number o f professionals can be used to limit access to services and to establish higher fees. This is an example o f where there may be conflict between the interests o f the public and the interests o f the profession. Physiotherapists believed that educational standards for the profession should be included in the regulatory statute to protect changes from being too easily made by the government. Discussions in 1991 with Ministry o f Health staff clarified that placing educational standards at the higher statute level where more legislative control is required 52 would in effect be a reduction o f self-governance. The mechanism o f delegated responsibility for educational standards, subject to Cabinet approval, is well-established in t k legislation for nearly every health profession. To remove this well-established mechanism would certainly be regarded as an erosion o f self-governance by those professions. (Strawczynski, 1991, p.2). To relieve the physiotherapists’ fear that the Ministry could too easily change educational standards, it was agreed that the Health Professions Act (1990) would be amended to require that notice o f all proposed changes to regulations would be given to all regulated health professions at least three months prior to the effective date o f the regulation. This change provided assurance to physiotherapists that there would be time to respond and if necessary use political lobbying to influence regulatory changes. In moving to regulation under the Health Professions Act (1990), physiotherapists were delegated the responsibility o f establishing the registration requirements for the profession. This resulted in the ability of physiotherapists to change requirements to include successful completion of a national competency examination. Physiotherapists in Canada had been actively involved in funding and developing a competency based examination for entry to practice. Assessing competency for registration through an examination set by the regulatory boards is a move away from relying solely on academic credentials for qualification. Prior to physiotherapists in British Columbia attaining their new regulatory framework, Ontario was the only province with the regulatory powers to require successful completion o f the national examination for entry to practice the profession. The decision to use the national examination initiated much debate between physiotherapists involved with regulatory duties and physiotherapists representing the professional association. The differences in opinion on the validity, cost and effectiveness o f usix]g a national examination became a primary issue affecting the choice to be regulated 53 under the Health Professions Act (1994). These differences in opinion were debated within physiotherapy meetings, political meetings, and included lobbying the Minister o f Heahh. The question o f who should set the entry to practice standards raises concern about the profession using regulation to control the number o f registered practitioners through setting an unnecessarily high or hard to attain standard. Such a standard could affect the availability and cost o f services. Physiotherapists involved with the regulatory changes had to convince the Minister o f Health that the use o f a national competency examination as a requirement for entry to practice as a physiotherapist was warranted for ensuring the competency of physiotherapists. By March 1991, the Minister of Health, John Jensen, wrote a response to physiotherapists’ concerns regarding the Health Professions Act (1990). Jenson (1991) clarified that although the Act was introduced to focus on new and emerging professions already regulated professions could also be designated under the act. The letter stated that the proposals for legislative changes submitted by physiotherapists were all met in the Health Professions Act (1990). Even though a profession wanting to be regulated must apply to the Health Professions Council for a review o f its application, the Minister informed the Association o f Physiotherapists and Massage Practitioners that there would be no need to apply through the Health Professions Council. Because physiotherapists and massage practitioners would be requesting to move under the new legislation, the Minister required only a clear statement from both the massage practitioners and the physiotherapists agreeing to separate regulation and designation under Bill 31, the Health Professions Act (1990). The Minister wanted assurance that a feir and agreed to separatfon was occurring between the physiotherapists and massage practitioners. 54 Agreeing to bypass the application through the Health Professions Council process meant there could be no request for change to the scope o f practice o f the professions. In 1994, the Minister o f Health delegated the responsibility o f reviewing the scope o f practice o f all regulated health professions to the Health Professions Council. It was then that review o f the definitions o f physiotherapy and massage scopes o f practice could occur and be changed. By January 1992, physiotherapists involved with requesting legislative changes and the members o f the Council o f the Association o f Physiotherapists and Massage Practitioners had reconsidered the stance o f wanting separate legislation and had accepted that regulatory needs could be met by moving under the Health Professions Act (1990). Physiotherapists continued to respond to the evolving changes to the Health Professions Act (1990) by giving feedback on various issues such as support that the legislation should include a mandate of yearly reporting to the Minister o f Health (A.P.M.P. letter July 29,1992, to the Minister of Health). A.P.M.P. Council accepted that the reporting process would be participatory and would provide an opportunity for the actions o f the regulatory College to be monitored by the Minister o f Health, thus maintaining the government’s responsibility to ensure the methods chosen by Colleges for public protection were valid and warranted. The discussion on appointees continued and physiotherapists proposed that the number of appointees should not exceed 25% o f the total board membership, that the cost o f appointees should be the govermnent’s responsibility, that appointments should be made with input from the regulatory board, and the appointments should not be limited, as in Ontario, to those licensed under the same umbrella legislation The A.P.M. P. Council further recommended that the appointees should have the ability to participate in a valid manner by carrying their share o f the work and responsibilities. 55 Changes in the Health Profession Act (1990) regarding lay appointees did occur and currently public members constitute one third o f the College Boards. The government does ask for input from the regulatory boards on nominees but ultimately chooses the appointees and the Colleges are responsible for the cost o f the public members’ involvement. Although not set in the legislation, physiotherapists were informed that College Boards can ask for a new appointee if there is a valid reason for doing so, for example, the need to replace a non­ participating appointee. The purpose o f lay membership on regulatory boards is seen as a means to increase accountability o f regulatory boards and to increase public protection through the active participation o f public members in the work o f the College Boards. The current Health Professions Act (1996) does not define a specific mechanism for lay members to report to the Minister o f Health. Therefore it is reasonable to ask whether or not there is increased accountability for public protection by the appointment o f lay members. In March 1993, the individual sectwns o f physiotherapists and massage practitioners passed motions to proceed with a request for separation with both professions to be regulated under the Health Professons Act (1990). The motion was qualified with the conditions that a) amendments be made to the present act to provide for legislative review o f regulations and for lay representation o f one third o f the Board members, b) the Minister o f Health permit the two professions to bypass the Health Professions Council application procedure, and c) the scope o f practice review be delayed until all other regulated health professions were also reviewed. In 1993, there was cautious acceptance o f Ministry o f Health feedback that all other currently regulated professions requiring significant amendments to then legislation would also be directed to move under Health Professions Act legislation. The Chartered and Registered Physiotherapy Newsletter (April 1994) summarized the decision that the Health Professions 56 Act (1990) would meet the legislative goals o f (a) separation o f physiotherapists and massage practitioners from being regulated under one Act, (b) amalgamation o f physiotherapy Parts I and n, and (c) provide updated legislation and bylaws that would allow for more efficient processing and resolution of complaints. This decision of the A.P.M.P. Council to move under the new legislation initiated extensive debate between the professional association and the regulatory board. Prior to physiotherapists becoming regulated by the Health Professions Act (1990) and the subsequent revised Act (1996), the professional association and physiotherapy students from the University of British Columbia lobbied Members o f the Legislative Assembly and the Minister of Health against the A.P.M.P. Council decision to move under the new legislation. The concerns expressed by the professional association included fear of losing independent legislation for the profession, but the strongest objection was to the regulatory college’s authority to set the new entry to practice requirement o f a competency examination. The debate focused on whether or not the use o f a national examination process for all new registrants was a valid requirement. A criticism o f implementing a national competency examination was the significant cost implication for graduating students from Canadian universities. Canadian graduates, along with the foreign applicants, would be responsible for the costs o f writing the examination. This debate included convening a special general meeting o f the Registered and Chartered Physiotherapist Sections, several Ministry o f Health meetings and lobbying and intense debate at the annual meetings o f both the regulatory and professional associations. In 1994, the Minister o f Health had become convinced o f the right for the regulatory board to determine the entry to {vactice requirements but needed assurance that the students and 57 professional association members lobbying him were satisfied. The compromise attained was that when the new regulatory College was formed, it would supplement the costs o f the examination for the first three graduating classes from the University o f British Columbia. This provision o f granting a subsidy to graduating students from the University o f British Columbia convinced the then Minister o f Health, the Honorable Paul Ramsey, that those lobbying against the examination process were satisfied. Thus in the end, the authority of the regulatory board to set the educational qualifications for the profession was upheld and the College o f Physical Therapy o f British Columbia was formed December 14* 1994 under the Health Professions Act (1993). The debate on the use of a national competency examination for entry to practice illustrated where the interests o f the profession and those o f the public are not identical. It reinforced the value o f the structure o f the Health Professions Act (1996) that clearly sets a mandate for separating regulatory and professional groups. Such separation allows the regulatory board to focus on the mandate o f public protection, and the professional associations to promote professfonal interests. Physfotherapists and massage practitioners already had this separatfon established in 1946 with their initial self-regulating legislation. Some regulated professions in British Columbia are not as clearly structured this way. This separatfon o f roles increases public protection by reducing the potential for professional interests to take precedence over public interests. Under the Health Professions Act (1990) and the subsequent revised Act all regulated professionals must carry liability insurance. This caused concern on the part o f the Physiotherapy Association o f British Coliunbia and the major union representing physiotherapists (The Health Sciences Association) in British Columbia. The union held that 58 physiotherapists employed in institutions where there was a union contract must receive insurance coverage &om their employer. The College o f Physical Therapists determined that hospital coverage was neither adequate for individual professbnal protection nor for public protection. The College compromised by accepting that physiotherapist malpractice coverage was sufficient if verified by the employer. This malpractice insurance requnement augments public protection by recognizing that accidents and negligence are possible and that there are means of retribution should these occur. Under the Health Professions Act (1990) and subsequent revised Acts the code o f ethics and standards o f the profession were included in bylaws approved by an order in council of the government. The process of obtaining bylaw approval includes a review by staff o f the Health Legislative Policy and Planning Division, Ministry o f Health, and the requirement that the government provide notice o f a bylaw prior to being brought forward to Cabinet for approval. This notice gives the opportunity for feedback to increase the accountability o f both the regulatory body and the government in setting standards that are in the interests of the public. Also included is the ability o f the College Board to set clinical practice guidelines and advisory statements. Clinical practice guidelines set out specifics of clinical practice and by informing the members o f the profession o f these guidelines there is increased regulatory enforceability to ensure these guidelines are met. Advisory statements provide interpretation o f the code o f ethics, standards or clinical practice guidelines and are approved by the College Board. Because the College Board has the power to set clinical practice guidelines and advisory statements, these guidelines and statements can be more readily updated as changes or new knowledge emerges. The code o f ethics and standards set by regulatfon provkle guidance and support for 59 everyday decisions in the delivery o f health care. They outline the responsibility o f the professional to be accountable for his or her actions and to practice within his or her own level o f competence. Colleges enforce the standards by responding to complaints by an inquiry and discipline process. The new health professions legislation enables a complaint to be resolved through a more enforceable, consistent and efficient process. In the new legislation, the details of the inquiry and discipline processes are clearly explained. The processes implemented include innovative approaches to encourage conq>liance o f the practitioner by the use o f consent orders as well as encouraging alternative dispute resolution. Consent orders are legally binding agreements between the regulatory board, the registrant o f the profession and the complainant on the 6cts o f the complaint and the agreed upon discipline to be enacted. The use of consent orders decreases the need for time consuming and costly inquiry and discipline hearings and results in speedier resolution o f complaints. For physiotherapists, the use o f the new complaint process resolved long-standing problems inherent in the old legislation. Use o f consent orders reduces the costs o f handling a complaint, but more importantly for public protection, it applies an administratively fair process that can be more rapidly implemented than a full inquiry and discipline process. The Health Professions Act (1996) allows the Inquiry Committee o f the College to take the extraordinary action o f setting limits on the practice o f the registrant or by suspending the practitioner’s registration during the investigation or pending the hearing o f the discipline committee. This section summarized the historical issues in physiotherapy regulatk>n and began to describe the effects o f the regulatory changes that occurred with the implementation o f the Health Professions Act (1996). The two most significant changes occurring with implementation o f the new act were the addition o f a new regulatory responsibility for 60 continued competence o f the regulated professional, and the way the scope o f practice o f the profession was defined. The next chapter will analyze the new approach to defining scopes o f practice with the subsequent chapter analyzing the new regulatory responsibility of ensuring continued competency. 61 CHAPTER FIVE OPEN SCOPE OF PRACTICE AND RESERVED TITLE A scope o f practice statement describes what the profession does, its purposes, and methods. Reserved titles are the exclusive labels the profession may use for defining itself. The Physical Therapy Scope o f Practice Review (1998) states the importance o f defining a scope o f practice statement in that it: ...defines the area o f practice for which the governing body must establish registration requirements and stamlards o f practice; it defines the parameters o f the profession for members o f the profession, employers, courts and educators; it informs the public about the services the practitioners are qualified to perform, (p.9) In B.C., the Health Professions Act (1996) changes the way scope of practice is defined by implementing open, non-exclusive scope o f practice definitions and the granting o f reserved titles. In B.C., the Health Professions Council has been assigned the responsibility o f reviewing the scope o f practice definitions and the use o f reserved titles o f all regulated health professions and all new professions applying for regulation. The review has four elements: scope o f practice statements, reserved acts, supervised acts and reserved titles. The terms “reserved act model” and “controlled act m oder are used to describe the model that incorporates broad, non-exclusive scope o f practice statements and narrowly defined reserved acts. Reserved acts are those elements o f a profession’s scope o f practice that present significant risk o f harm to the health, safety, or well being o f the public. Only regulated professionals may perform or supervise the performance o f reserved acts. Reserved acts are given to specific professions and may be given to several regulated professions. Supervised acts are reserved acts performed under supervision o f a health professional to whom a reserved act has been granted as part o f his or her scope o f practice. See Appendix B for the list o f currently reserved acts in B.C. 62 Defining the Reserved Act Model The Health Professions Council’s Shared Scope o f Practice Model Working Paper (1998) clarified the intent o f the move towards the use o f a reserved act model for defining scope o f practice. The terms o f reference recognized that: .. certain tasks or services performed by a health profession may carry such significant harm to the health, safety and well being o f the public that they should be reserved to a particular profession, or shared amongst qualified professions. The only restrictive element o f a profession’s scope of practice will be any reserved acts within that scope. (p.l) The Health Professions Council, in determining how to assess which acts are of significant harm, was assisted in part by the 1994 Manitoba Law Reform Commission Regulating Professions and Occupations. The Health Professions Council accepted three principles to use in determining the seriousness or significance o f potential harm to the public. The three criteria used are: • • • the likelihood o f its occurrence; the significance o f its consequences on individual victims; the number o f people it threatens (p. 2). During the early consultation process with the Health Professions Council the College o f Physical Therapists, along with the B.C. Dietitians and Nutritionists Association expressed concern about the criterion o f the number o f people threatened. The professions argued that an act should be reserved if even a small number o f people are affected. The Health Professions Council agreed with this concern and determined that not all three fectors were needed in order to reserve an act. The Move to Onen Scope o f Practice Definitions Implementing a reserved act model for defining scope o f practice reduces regulatory restrictions on providing health care services by reducing the ability o f any one regulatory College to enforce exclusive license to practice an area o f work However, there are differing social, economic, and political perspectives on the extent to which a regulated scope of practice definition establishes dominance and control over the delivery o f health care 63 services. Cobum, Torrance and Kaufert (1983) examine the historical development o f how medicine attained the status o f being a dominant profession with restrictive control over the activities o f other professions and claims to exclusive competence to practice medicine. Friedson (1970), in defining medical dominance used the following criteria: 1. self-regulation over the content o f work; 2. regulation over the terms and conditions o f work; 3. control over other occupations in the division o f labor; 4. and control of clients. ô>- 407) Using Freidson’s definition of medical dominance it can be concluded that self­ regulation of the medical profession in B.C. enables physician dominance in the provision of care. The powers established by self-regulation enabling the medical profession to place restrictions on the division of labor and the content o f who can do what work. This dominance is a major fector in the current government decision to change the way scope o f practice is defined by regulation and is supported by conclusions o f earlier reviews o f health care in B.C. Health care reviews in B.C. have recommended the change to non-exclusive scope of practice definitions. The Hastings Report (1972) recommended the development of interdisciplinary teams where roles and scopes of practice were not narrowly defined. This report concluded that narrow scopes of practice definitions restricted the professional’s application o f skills and is contrary to the public interest in that such definitions limit the supply o f health care providers and consumer accessibility to services. Similarly, McLeod (1973) concluded that regulation that unduly restricts a profession’s scope o f practice is contrary to the public interest o f wanting greater supply and accessibility to skilled personnel, and the ability to have greater flexibility in the utilization o f different health disciplines. The Seaton Commission (1991) concluded that existing legislation governing health professions creates ongoing jurisdictional disputes and lack o f cooperation between health professions. In summarizing their findings, the Commission stated: According to a number o f professional associations and unfens, scopes o f practice who is allowed to do what to whom and under what circumstances - are a source o f conflict. Your submissions also state that, contrary to their purpose, present legislatfen 64 and regulations governing the care o f health professions tend to protect the profession at the expense o f the public (p. 19). The Seaton Commission recommended a move to open scopes of practice statements and concluded that: .. .exclusive scopes o f practice should be narrowed to focus on preventing harm, as has been initiated recently in Ontario. We believe that more appropriate, cost effective and timely health care could be provided to more patents if B.C. were to follow the Ontario initiative. (D-33) It is too early to determine if the move to using open scope o f practice definitions will result in appropriate, cost effective and timely health care. There is continued tension in balancing the use o f regulation to ensure competent health care providers and the effect o f regulation on the supply and cost o f care. The Effect o f Implementing Open Scope o f Practice Definitions It has been explained that implementing a reserved act model reduces regulatory restrictions on the provision o f health services but that professions which are granted reserved or controlled acts do have the potential to use the reserved act to set restrictions on the availability o f manpower, services and costs o f services. The use o f an open scope o f practice definition recognizes that more than one professional group has the skills and knowledge to provide health care services and reduces claims by any single profession o f having exclusive competence to perform health services. This approach should result in a more flexible and efficient use of health workers, and potentially in increased cost effectiveness. Expanding the ability o f a range o f health care practitioners to provide health services and enabling overlapping competencies does not solve turf protection and inter-professional competition. Regulatory ability to protect turf is reduced but the health delivery maricet will still face inter-disciplinary c o n ^ titm n issues and there will be ongoing questioning o f who is conqpetent to provide the services. Implementation o f the reserved act model for defining scope o f practice allows a greater range o f health professfonals to folly use their training, expertise, and skills. This 65 expanded ability is influencing chaises in the education o f health care professionals. One example is in the development o f physiotherapy and rehabilitation assistant programs. Another is in the move for a Masters level degree as the entry to practice requirement for physiotherapy. The difficulty for the public is how to determine which profession is best qualified to provide a specific health service. An example o f how using an open scope o f practice definition can cause confusion in understanding the choice o f services and competencies o f the health care providers is seen with the Health Professions Council’s recommended scopes o f practice for massage therapists and physical therapists. The scope o f practice definitions proposed for the two professions are very similar with the exception o f which reserved acts are given to a profession. It was recommended that massage therapists not be granted any reserved acts as none of the acts performed by massage therapists meet the criteria of significant risk o f harm to the public. The reserved acts proposed for physical therapists are those actions that meet the criteria o f risk o f harm (Appendix C). At the time o f this writing, these statements have not yet been finalized and will undergo further review prior to being incorporated into the legislation. The Massage Therapy Scope o f Practice Review preliminary report released in 1998 defines the practice o f massage therapy as: the assessment o f the soft tissues and joints o f the body and the treatment of dysfunction, injury, pain and physical disorders o f the soft tissues and joints primarily by manipulation to develop, maintain, rehabilitate or augment physical function, to relieve pain and promote hrahh. (p. 3) The Physical Therapists Scope o f Practice Review (B.C.1998) preliminary report defines the practice o f physical therapy as: the assessment and treatment o f the neuro-muscular and cardiorespiratory systems o f the human body by physical or mechanical means for the purpose o f maintenance or restoration o f function that has been inqiaired by injury or disease, for pain management and for promotion o f mobility and health, (p.3) In reading these two definitions it is difficult to discern the difference between a 66 massage practitioner and a physiotherapist. Because the statements are open and generic in nature it is important when making decisions on choice o f care to discern who can best perform the services, the qualifications needed to provide the services, and the standards o f practice o f the profession. It is also important for the public to know which professions are regulated, thus being assured that the professions are enforcing acceptable standards of education and practices. How the public will know which professions are regulated is yet to be determined. The reserved act which physical therapists argue needs to be included along with the proposed reserved acts is the ability to conclude an assessment with a physical therapy diagnosis. Other professions including nursing are arguing that reserved act of diagnosis must be granted to professions other than medicine. Nurses and physiotherapists argue that concluding an assessment with a diagnosis determined within the competencies o f the profession occurs in everyday good practices as a necessary step in determining the most effective treatments to provide. Being unable to do so impairs this process and continues physicians’ dominance in the delivery o f health care. This limitation is contrary to the given reasons for implementing in regulation the use o f open scope o f practice definitions. As the Health Professions Council has not yet concluded the review o f scope of practice, this issue is undetermined. Through the implementation o f the reserved act model the investigation o f complaints against a pe titio n e r shifts in emphasis from looking at whether or not the practitioner was working within his or her scope o f practice to focusing on the harm that occurred and the competence required fi>r the practitioner to perform the action. There will still be regulatory control over the reserved acts and complaints may come forward regarding practitioners performing reserved acts that are not granted to their profession. The shift to the focus on harm is due to the wide scope of acts that are not reserved and the ability o f these acts to be done by both regulated and non-regulated care-givers. What arises with this change is a 67 heightened need for the regulatory structure to establish defensible and enforceable standards o f practice. To this end the Health Professions Act (1996) incorporates current principles of administrative law for establishing regulations to set and enforce the standards o f practice o f the professional. The ability o f regulated professions to enforce standards o f practice was recently upheld in a court decision between the College o f Physical Therapists o f British Columbia and College member C. Eng. (British Columbia Supreme Courts (2000) Carolyn Eng. v. College o f Physical Therapists.) In this judgment the petitioner argued that the College had no jurisdiction to discipline the petitioner and could not enforce the professional standards as they were not approved by the Lieutenant Govemor-in-Council. This argument foiled based on the Health Professions Act (1996) ss.33 through ss.39, which states that the College, on its own motion, may investigate a practitioner in regards to professional misconduct. There is no requirement to legislate conduct by way o f the act or by way o f the bylaws in order for the College to have jurisdiction over the conduct of the physiotherapist. This judgment referred to a long standing state o f the law occurring as for back as the turn o f the century quoting; Chrichton (1906) 13 O.L.R. 271, (DC) at 284, the court held: Implicit in the concept of a profession is the existence o f standards which are benchmarks for the practice o f the profession. The standards may be written or unwritten. They may or may not be prescribed by the governing statute or regulations (Eng vs. College o f Physical Therapists, 2000, p.6). The ability to enforce standards o f practice is reinforced by this court decision. The Health Professions Act (1996) updates the process o f inquiry and discipline to enable the use o f current principles and policy directions o f administrative law. Establishing standards o f practice by regulation is linked to defining the competencies o f practice for professionals. The defining o f conqwtencies and standards o f practice has heightened the need for regulators to use evidence-based standards o f practice in determining whether or not there was harm or inconqwtence on the part o f the practitioner. The heightened need to use evidence-based decisions in regulation and throughout the whole health care 68 system was supported by the 1997 National Forum on Health, Creating a Culture of EvidenceBased Decision Making in Health. The Forum recommended “Canada must move quickly towards an evidence-based system and to put into place the necessary resources to build a more effective and efficient health system” (p.3S). In regards to evidence-based practice, the National Forum on Health recommended “licensing bodies incorporate the use and development o f evidence-based clinical practice guidelines into standards o f care required o f members” (p. 33). To be valid evidence-based clinical practice guidelines need to incorporate the best evidence to date and be established with ongoing processes for review and updating. In 1996, the Canadian Physiotherapy Association developed a discussion paper on clinical practice guidelines (CPA, 1996). The introduction to this paper noted that a variety o f factors and environmental forces influence the development of clinical practice guidelines and the evaluation of the effectiveness o f using such guidelines. The development and use o f evidence-based clinical practice standards for regulatory purposes is affected by the gaps in and limitations o f current research on standards o f care and the lack o f knowledge as to whether or not clinical practice guidelines are the most effective means for ensuring practitioners provide the best care. Although there is a shift in regulation towards defining professional competencies and the use o f evidence-based practice guidelines, regulation does not determine the effectiveness o f a treatment. Another consideration in the use o f clinical guidelines is the ability o f the guidelines to be relevant for differing professional knowledge and approaches to the provision o f care. Professions will incorporate evidence into their practices in differing ways. Despite the possibilities o f attaining public protectk>n through professional regulatk>n, there are limits to public protection inherent in the structure o f professional self-regulatioiL The self-regulatory powers to ensure professional competence are only applicable to the registrants o f the Colleges. Thus, if the person performing the service is not a regulated professional, other legal means must be available for the public to use if harm occurs. Other 69 public protection strategies include the qualifications required to obtain a business license and the setting and enforcement o f standards o f care by those funding the care. The public can also be protected by the use o f the legal system to determine injury or harm. Utilizing these other means of liability and risk management strategies raises the question o f who should be responsible for enforcing professional standards, the professions through self-regulation or these other means. Setting and enforcing standards o f care allows the profession to have power and control within the health care system. The extent to which professions should have this control is part o f the ongoing debate on the purpose and value o f professional selfregulation. The implementation o f the reserved act model for defining scope of practice reduces regulatory control in one area, but power and control is retained through the regulatory ability to set and enforce standards o f care. The reserved act model for defining scopes o f practice increases reliance on the ability of consumers to make informed decisions about their care. However, complete reliance on the ability o f consumers to determine the best practitioner for their needs is not desirable. There is a wide range o f capabilities among the people who utilize health services. In addition, consumers are being asked to make decisions when ill health places them in a vulnerable position. Consumers have the challenge o f dealing with a large volume o f knowledge and interpreting the validity o f that knowledge. For these reasons, governments have accepted that the need for self-regulation is necessary to protect the public. Reserved Titles Under the Health Professions Act (1996), the Health Professions Council may recommend to the Minister o f Health that in regulating professfons under the Act, one or more titles should be used exclusively by the registrants o f the regulated profession. Giving title protection is one way of informing the public o f a professional grouping, but it is questionable as to how the public knows which titles are protected. The current use o f titles does not tell the public which professions are regulated, what 70 services they can expect or whether or not the person is qualified to provide that service. The consistent and valid use o f titles and labels to designate a profession or the competence of a professional is important for public protection so the public knows the type and quality o f services to be received and can have confidence that they are receiving care fi’om the profession o f their choice. The Seaton Commission (1991, D-34) recognized the confusion for the public in the use o f the terms “registered” “ licensed” or “certified” and recommended that the use o f these terms be prohibited by any health professional unless that use has been approved by the Health Professions Council. In the review o f scopes o f practice and the designation o f titles, the Health Professions Council to date has not made consistent recommendations for the use o f the registered, licensed or certified titles. The government also allows the use o f titles without a registration process. An exanqtle o f this is social workers, where, currently registration is on a volimtary basis. The use o f reserved titles can be confusing for the public when a professional designation is also used as a descriptor for the service being provided. There are many examples where other professions and caregivers use the term physical therapy: “I am doing my physical therapy”, instead oC “ I am doing my exercises prescribed by my physiotherapist.” In the submissions to the Health Professions Council, naturopaths and chiropractors indicated their members are trained in providing physiotherapy. While their members may use common procedures such as electrotherapy, exercise and manipulation, physical therapists contend that members o f these Colleges do not practice physical therapy. To reduce this confusion, physical therapists have strongly urged a policy change to protect professional titles and professfonal designations. This has not yet occurred. Other professions, including respiratory therapists and occupational therapists, feced with similar confusion on the use o f terms, have tried to address this by using federal legislation and applying to trademark or patent laws to regulate the use o f terms labeling the profession or describing the services provided by the profession. To date, these applications are still being considered by 71 the federal government. What continues to be important for public protection is resolving the use o f titles and terminology in order to establish a clear and consistent nomenclature that is understood by the public. Summarv Implementation o f the reserved act model for defining scope o f practice has the potential to remove unjustified regulatory restraints on the ability of professionals to use their knowledge and abilities to provide health care and reduces but does not absolutely resolve the extent to which the scope o f practice definition establishes regulatory control on the delivery o f health care. The Health Professions Act (1996) diminishes the medical dominance of physicians but does not eliminate this dominance. The implementation o f open scope o f practice definitions for the regulated health professions allows the public more choice but places an increased reliance on them to be informed. The change in defining what a professional is able to do from restrictive and exclusive terms enhances the need for regulation to define and enforce the competencies o f the professional. This means that attaining public protection requires a supporting legislative framework with the power to establish and enforce valid standards o f registration and practices. To this end, the Health Professions Act (1996) establishes a frameworic o f current enforceable regulatory law including a new regulatory responsibility o f ensuring continued competency o f the regulated health professional. Although the Health Professions Act (1996) enables the granting o f reserved titles for regulated professions, there remains a lack o f clear and consistent use o f titles and labels to describe health professional services. This lack o f clarity in use o f title and labels and the difBcuhy in knowing the conqietencies o f different professions makes it difGcuh for the public to know who is best qualified to perform specific health services. 72 CHAPTER SIX ASSURING CONTINUING PRACTITIONER COMPETENCE One of the newer regulatory responsibilities assigned in 1993 for all self-regulated professions in B.C., including physiotherapists, is the responsibility to ensure a professional's competence throughout his or her career. Regulatory responsibility for continued competence resulted from ongoing recognition by government and the public that competence o f the professional needs to be monitored on an ongoing basis to ensure quality, safety and public protection. A review o f the policies and practices for physiotherapy and other professions shows that the continuing conqietency requirement is not unique to B.C. as it is being added to regulatory acts in other provinces and countries. In Canada, Ontario was the first province to put this regulatory responsibility in its legislation. In the United States, the report o f the Pew Health Care Commission-Task Force on Health Care Regulation (September 1995) recommended each state should “require the development, implementation, and evaluation o f continuing competence requirements” (p.5). In response to this recommendation, the Federation of State Boards for Physical Therapy appointed a task force on continuing competency in 1998. The task force report. Continuing competencv. A discussion paper. released in April 1998, discusses the need, and possible means, to develop a national consensus on how regulators can work towards ensuring continued competency. In Canada, an implication o f the provincial trade agreements is the need to determine equitable, transferable, and defensible entry to practice and continuing competence requirements for professional regulation. Natk>nally, the Alliance’s 1998 strategic plan includes the mandate to build a national consensus and strategy to meet this continuing competency responsibility o f the provincial regulatory colleges. The College o f Physical Therapists o f B.C. is supportive o f the need for a natk>nal approach for ensuring continuing 73 competency. The Health Professions Act (1996) delegates under the duty and objects o f a College the responsibility t o establish and maintain a continuing competency program to promote high practice standards amongst registrants” (Section IS. 1.2 (e)). There is also the duty to establish, monitor and enforce standards o f education and qualifications for registration and to establish, monitor and enforce standards o f practice that enhance the quality o f practice and reduce incompetent, impaired or unethical practice amongst registrants. Thus, the conqwtence o f the practitioner is approached within the statute from three directions: a continuing competence program, registration standards, and standards o f practice. Attaining Continued Competence There are many unanswered questions about the most effective means to attain continued competence. Recently, Braham and Williams (1999) prepared a survey report. Licensure, certification and continuing competence practices among Canadian regulated professions. In this survey, 155 professmns responded from the 343 professions who were asked to participate. Ninety-five percent o f respondents indicated that the reason for implementing a continuing competency program was public protection. Of the 12 assessment methods surveyed, the most common approaches taken included continuing education and self-assessment. The authors stated: Interestingly, these two approaches were ranked the lowest for satisfaction, indicating a growing realizatkm that while easy to implement, these two approaches have not been very effective in meeting their d e s ig t^ purpose o f protecting the public. In contrast, assessment centers and computerized examinatkms were the least common ^proaches to current assessment, but were the two methodologies that received the highest ranking of satisfaction (p.2). The process o f developing a viable continuing conqwtency program provides an opportunity for self-regulated professfons to research fectors that influence a professional’s conqwtent performance over the length o f his or her career and to use knowledge to maximize the probability o f public protection and provision o f quality health care. There is the need to 74 determine professional competencies, ways o f measuring conq>etence, and the effectiveness o f continuing competence activities on increasing the quality o f health service. The move to establish a program to ensure continued c o n ^ e n c y does not replace the traditional regulatory responsibility to handle complaints by an inquiry and discipline approach for protecting the public from incompetent practitioners. A regulatory College has the duty “to superintend the practice o f the profession” and “to establish, monitor and enforce standards o f practice to enhance the quality o f practice and reduce incompetent, impaired or unethical practice amongst registrants” (H.P.A. Section 15.1(2)). The addition o f ensuring continued competence recognizes that attaining quality o f practice only by searching for those professionals whose practice is not competent (“the bad apples”) does not affect the majority of the members o f the profession. This conclusion is illustrated by reviewing the complaints dealt with by physiotherapists in B.C. In 1998, the total number o f physiotherapists registered in B.C. was 2255, including 72 student registrants. In 1998, the regulatory board for physiotherapists dealt with 54 complaints. O f these 54 complaints, 33 were outstanding complaints from previous years and 21 were complaints received in 1998. In 1997 there were 20 new complaints. The number of complaints carried forward was a result of the inadequacies in physiotherapy regulatory legislation prior to going under the Health Professions Act (1996). The move to the new legislation has enabled the CPTBC to resolve these complaints. Thus, the number of complaints received relates to only about one percent o f the registrants. Continuing Competencv is not an Isolated Responsibilitv The Health Professions Act (1996) sets the expectatfon that the professfon’s regulatory and professional roles are to be distinct and separate, yet in the area o f conq>etency there are both separate and overlapping roles for the individual professional, the regulatory college, the professional associations, the academic educators, and the employers or hinders o f care. The regulator is responsible under the Act for ensuring entry to practice and continuing 75 competency; the professional association complements this by its responsibility for enhancing competency, and the educators are responsible for the provision and development o f education. The professionals themselves have a responsibility to be competent, while the employer/funder is responsible for ensuring those they employ or fund are keeping up to date and competent in the services they provide. Entry to practice competencies and continuing competencies are strongly linked to the extent and quality o f the professional’s education. For public protection, it is necessary to ensure that the standards o f education result in competent professionals. There is a range o f approaches to ensuring quality of educational programs, including regulation by government and mandatory or volimtary accreditation programs. For physiotherapists, the use o f a national entry to practice competency examination has a feedback loop to the university programs. In addition, university physical therapy programs also participate in an accreditation process. It is a responsibility o f the Health Professions Council to investigate and “to ascertain what education programs exist in the province or elsewhere for the proper education and training o f persons with respect to the practice o f the health profession and evaluate the content of those programs’’ (H. P.A. 9, (2), (1)). Defining what is proper education and training is a complex task that depends on many factors, including the validity o f the knowledge being taught, the scope o f the knowledge obtained, and the methods o f assessing whether what is taught is learned. It is important to note this is a potentially strong power that has been granted to the Health Professions Council and perhaps is an example o f where the impact of delegating a regulatory responsibility has not been fully thought out. It is not clear how the Council will assess educational programs, and discussion has not occurred regarding whether or not it is appropriate for the Council to have this regulatory responsibility. With regard to the proposed scope o f practice proposal o f massage therapists in B.C., physiotherapists expressed concern about the regulation o f private post secondary schools in B.C. and the potential conflicts in the accredhatfon processes currently in use. Detailed 76 discussion o f validity o f education programs, the mix o f privately and publicly funded education programs, and marketplace competition in the delivery o f education is beyond the scope o f this thesis. It is important to note, however, the link between regulation and education and the responsibility o f the self-regulated profession to assess entry level and continued competency. Because funders o f health care (including the government) want to fund competent and quality care, they are naturally interested in the competence o f heath care providers. In determining the standard or quality o f care, there is potential conflict between regulators and funders because regulators are responsible for setting standards for entry to practice, continued competency and services. Those funding health care may hold the view that regulators establish standards that are not affordable on an ongoing basis. Funders may wish to modify these standards because they want to enhance profits or stay within budget. This conflict enhances the need for regulators to defend and validate the reasons behind the standards. The Approach Taken bv the College o f Phvsical Therapists o f British Columbia The Quality Assurance Committee (QA) o f the CPTBC has been assigned the responsibility o f developing a program to assure continuing competency. The QA committee is composed o f college board members, a representative o f the provincial professional association, and members from the academic community. The QA Committee has approached the matter o f ensuring competence throughout a career by reviewing the many different approaches that exist and developing basic guiding principles. The issues around delivering continuing competency programs are complex and there are no clear methods to ensure competence. The approaches considered were professional portfolios, self-assessment instruments, professional certification, continuing education (mandatory and voluntary), re-administration o f entry level examinations, administration o f mid-career examinatfons, peer revfew, practfee reviews, use o f standardized 77 patients and cases, and computer-based client simulations. The QA Committee reviewed the range o f approaches to continuing professional competency summarized by Barnhill (1997) as a continuum from the “angel’s-trust-me” model to the “insect’s-show-me” model. The “angel’s- trust-me” model is based on selfevaluation, where the role o f the regulatory college is to encourage con^tence. The “insectsshow-me” model is based on re-certification examinations and prescriptive continuing education requirements. The “insect-show-me” model assumes that some professionals will not be appropriately motivated to maintain competence, therefore the shared responsibility o f the regulatory college and professional. The “angels-trust-me” model is based on the assumption that all professionals are motivated and will do what is necessary to maintain competence. Sheets and Winn (1996) proposed using a system o f markers and indicators that licensing boards could use to identify practitioners whose performances were below accepted standards. The methods o f determining which practitioners are at higher risk o f working below acceptable standards is an area where the QA Committee sees the need for further research. The QA Committee felt that the currently available complaint statistics are inconclusive in determining indicators o f professional practice below acceptable standards. Having a system o f markers as to which practitioners are at higher risk for performance below standards would be helpful for determining which practitioners would require greater follow up by the regulatory board. Physiotherapists did not choose mandatory continuing education as a method for ensuring continued competence. The effectiveness o f volimtary and/or mandatory continuing education for continued competence and increasing quality o f care is debatable. The rationale used to defend voluntary continuing education is that a professional’s choice whether to take courses should be respected and that mandatory continuing education is contrary to adult learning principles. An advantage o f mandatory continuing educatfon is the ability o f the 78 regulatory board to measure attendance and to potentially judge which educational activities are to be o f benefit to the professional. More research into the relationship between continuing education and competence is necessary because o f the current legal duty o f regulatory boards to ensure continued competence. Current means of evaluating the outcome o f continuing education ranges from documenting attendance, to having participants give opinions on the educational activity to attempting to measure changes in practitioner competencies such as attitudes, skills and knowledge. The highest level o f evaluation is assessing the impact that continuing education has on practitioner behavior and the provisions o f quality health care. Changes in professional behaviors are difficult to demonstrate empirically, although performance measures such as patient satisfaction surveys and functional assessment techniques o f treatment outcomes are evolving. To this end, measuring effectiveness o f treatment using outcome measures continues to be a professional development focus in current physiotherapy publications and in workshops sponsored by the physiotherapy professional associations. Other approaches used to promote learning or to identify the need for learning include feedback, peer reviews, mentoring, administrative guidelines and rules, financial incentives, performance assessments, audit procedures such as chart audits, and office record revkws. Each of these approaches has strengths and limitations for motivating the professional to change or improve his or her practke competence. Upon reviewing the above methods, the CPTBC concluded that a quality assurance professional portfolio model should be used to ensure continuing competency. The proposed quality assurance program is similar to programs being developed for other regulated professions. It establishes a proactive and supportive approach to foster growth and development o f professional practice and enables adequate separation from the disciplinary con^laints-driven system. The portfolio approach is designed to guide the self-assessment o f professional practice. The intent is to provide tools whereby the regulated professfonal will be 79 able to reflect on his or her professional practices, identify learning needs, develop learning goals, select an approach to learning, complete the learning activity, and evaluate the impact o f the learning on his or her identified goals and learning needs. The content o f the portfolio consists o f past and present experience, current career status, professional strengths and weaknesses, and short and long term career goals. There is a fundamental debate about the effectiveness for ensuring competency with a voluntary or mandatory program. Physiotherapists have determined that an element o f compulsion is required and thus a link to the inquiry and discipline process is necessary. It is proposed that this link would be used when a practitioner does not complete his or her portfolio to a satisfactory level, or if there is an identified risk to the public. If either scenario occurred, the inquiry and discipline process would be used to suspend or limit the practitioner’s registration. The objective of the continuing competency program in using a quality assurance approach is not to correct the behaviors o f incompetent practitioners by punitive means, but to provide the tools for fostering the continued competence o f all practitioners. The QA Committee suggested the professional portfolio incorporate a section where the physiotherapist is asked to look at his or her practice status and to take stock o f the environment in which he or she lives and works. This is because one’s work environment and personal circumstances may affect competence. It is arguable that the public is not adequately protected by professional regulation as there are environmental fiictors that potentially impair the ability o f the professional to perform services within the standards set by the professional regulations. Kushner ( 1992) proposes that the causes o f poor quality o f care can be identified by looking at the efficiencies o f how care is provided and the effect o f the regulatory standards of the individual professionals providing the care. Evaluating the work environment raises the question o f how extensive the regulatory College’s role should be in assessing and influencing work environments. This is again a 80 balance o f power question and relates to how or if a College should have involvement in negotiating and/or mandating work-setting influences on the standard o f care. The College’s regulatory responsibilities are directed at the professional, not at the employer or funder o f care, but if the professional cannot meet his or her College standards because o f the work setting, it is plausible that Colleges will be persuaded to have greater involvement in this area. The choice o f using self-assessment in the professional portfolio acknowledges that it is the responsibility o f the individual practitioner to ensure his or her own competence. This individual responsibility is one o f the factors used to define a professional. Critics of this approach challenge the ability o f the professional to engage in critical reflection and have insight into his or her behavior enough to determine his or her learning needs. An advantage of this model is how it incorporates a range o f ways to keep knowledge and skills up to date, thus respecting individual learning needs and overcoming the problem o f access to continuing education opportunities. This approach is remedial and proactive rather than punitive and its implementation appears to be affordable. Although the College has accepted the use o f a professional portfolio to ensure continued competence there remains many unanswered questions about the standards and measurement tools used. The College realizes that ongoing research is required to determine what compromises a satisfactory portfolio and how to deal with unsatisfactory portfolios. There needs to be continued research into the effectiveness o f using a professional portfolio approach to ensuring continued competence. It is too early to determine if this new regulatory responsibility will be effective in enhancing the quality o f health care and protection o f the public. G. Debling (personal communication, 1998) has assisted other industries in developing self-assessment continuing competency tools. He reports that an early result of the follow-up analysis o f professional portfolios or diaries indicates increased knowledge o f the standards and policies o f the profession and increased applicatfon o f the policies results in improved service provision. 81 In summary, the new regulatory responsibility for ensuring continuing competency has introduced to regulators the ability to develop a proactive, preventative approach to ensuring competency throughout the career o f all regulated professionals. The desired outcome o f this new regulatory responsibility is improved quality of care. The implementation o f the continuing competency requirement could also result in collaboration between professional associations, regulators, educators and funders with a result o f improved quality o f care. The punitive conqilaints and discipline approach affects only a few incompetent practitioners whereas the impact o f an effective continuing competency program will affect all regulated members o f the profession. As stated by Steinecke (1996), ...the development o f effective continuing competency programs may be much more effective than the whole o f the complaints, discipline and fitness to practice activities of the College, and it will likely be more cost effective as well because it does not involve hearings, (p.9-1) The development, implementation and eventual outcome measurement o f the effectiveness of continuing competency programs has become a current focus o f research driven by the change in regulatory policy. There are researchable questions on competency, learning and retention of knowledge, skills and abilities, and on the effect o f practice environments on professional competence. The effect on public protection o f implementing the regulatory responsibility to ensure competency throughout the lifespan o f the professional’s career has yet to be researched. 82 CHAPTER SEVEN CONCLUSIONS Self-regulation of the health professions affects the supply side of health care services and is only one o f many factors that interplay to affect the quality o f health care. It is a significant 6ctor because many aspects o f the delivery o f health care are dependent on the qualifications and availability of care providers. Governments establish the regulation of professionals with the overall objectives o f public protection and direction o f the quality o f health care. Regulation establishes mechanisms for the enforcement o f standards o f practice for professional behaviors. The need for professional self-regulation is based on the imbalance between professional and public knowledge and the service relationship between the health care provider and the consumer o f service. Although self-regulation o f the professions is for public protection, the granting o f regulation to the professions does give power and status to the professions. These powers may be used in the best interest o f the professions and not in the best interest of the public. In the development of regulatory legislation it is this tension between professional control and interests and public interests that directs policy decisions on how to regulate the professions. The historical summary shows that policy changes can take a substantial amount of time to implement and thus highlight the significance o f the current changes. Several decades o f health reviews (Foulkes Report, 1973; Hall Commission, 1964; Hastings Report, 1972; Pew Commission, 1997; Seaton Commission, 1991) had identified the need for regulatory reforms. All reviews identified the need for regulatory reform because regulation has an impact on professional control o f the availability, cost and quality o f health providers. Changes in regulatory policy are also being driven by an increase in expectations by the public for accountability and responsiveness o f professionals and the health care system. Professional knowledge establishes a power relatfonship between the consumer and the 83 professional. lUich et al (1977) discusses professional power as being different from other occupations and defines three types o f professional authority; . . .the sapient authority to advise, instruct and direct; the moral authority that makes its acceptance not just useful but obligatory; and charismatic authority that allows the professional to appeal to some supreme interest o f his client that not only outranks conscience but sometime even the raison d ’etat, (p. 17-18) The regulation o f health care professionals reinforces the characteristic o f a professional to use autonomous judgments and to control his or her work. How a professional gains exclusive rights to manage his or her work is documented by Friedson (1970). Using Friedson’s (1970) definition of medical dominance it can be concluded that the establishment of self-regulatory powers has an effect on the division o f labor and the content of who can do what work. The current regulatory change to using open scope of practice definitions and the resulting ability for more consumer choice is changing the dynamics o f professional authority. It is still too early in the implementation o f these changes to determine where the balance between professional power and the effect on the consumer will evolve, but it can be concluded there is a shift to more consumer choice which is resulting in a questioning o f professional authority. The Health Professions Act, R.S.B.C. 1996, c.l83 implements substantive changes in the regulation o f health professionals in B.C. The new act was first introduced in 1990 and evolved with changes into the current 1996 legislation. This legislation establishes a new structure o f umbrella legislation that includes a policy shift from restrictive or exclusive scope of practice definitions to defining scope of practice by the use o f an open reserved act model and a new regulatory responsibility to ensure continued competency. The traditional regulatory functions o f setting standards o f qualifications to practice the profession and enforcement o f minimum standards o f practke using a complaints and discipline process are 84 Standardized and retained in the new legislation. The case study o f the regulatory history o f the physiotherapy profession in British Columbia documents the evolution of regulation for a health profession and shows the need for and effects o f the current regulatory reform. Physiotherapists in B.C. became regulated under the Health Professions Act in December 1994 as one o f the first previously self­ regulated health professions to go under the new legislation. The new legislation provided physiotherapists with a much needed current regulatory framework to enforce the standards o f practice o f the profession. It removed the subservient role requirement to only work under medical prescription and enabled separating the joint regulation o f massage therapy and physiotherapy under one regulatory act. The findings o f this study show that incorporated within the self-regulatory umbrella legislation are methods o f increasing consumer focus, accountability, administrative efficiency and appropriate division of power between professional boards, regulatory boards, and the government. The government has chosen to use delegated umbrella legislation to establish a self-regulating structure where the professions themselves administer the regulatory law. Administrative efficiency is attained by the move toward uniform regulatory language and the use o f tenq)late/ umbrella legislation in which all self-regulated professions have similar legislative duties and functions. Accountability to the public has been attained through the appointment o f lay or public members to the regulatory boards. Accountability is also increased by the legislation incorporating the principle that all regulatory board members, both professional and public, have the responsibility to regulate in the public interest rather than in the interest o f the profession. In regards to the appointment o f lay members the physiotherapy profession chose 85 to set in their bylaws a limitation on the length o f the term o f appointments o f lay members. The rationale for this decision was that turnover o f lay members would facilitate greater input of public concerns. The Health Professions Act (19%) does not set the length o f terms for appointment of lay members but leaves this to each profession to establish in their bylaws. Other accountability mechanisms included in the new act are annual reporting to the Minister of Health and mandated malpractice insurance to be carried by all health professionals. The annual reporting provides a method o f informing the Minister o f regulatory actions and can be used to alert him or her to changes in regulation that may be required in response to changes in the delivery o f health care. The Act, however, does not specify the information to be reported to the Minister nor whether there will be checks to see if the regulatory boards are performing their functions. Granting professional self-regulation reinforces the concept that attaining regulation is a natural step in the development o f a profession and establishes status and powers for the regulated profession. To balance this concern, the new Act retains a consumer focus by establishing a defined method for professions to apply for regulatory status. Self-regulation is granted only when the public interest is served by doing so, and when the advantages clearly outweigh the disadvantages. Establishing this process reduces the potential o f using political influences to attain regulatory status and thus increases the accountability o f the regulatory structure. The responsibility for determining if a health profession should be recommended for regulatory status is given to the appointed Health Professions Council established under the new legislation. It is important to note that the need for public protection criterion used by the Council does not include determining the efifectiveness o f the health care services nor which profession is better qualified to perform the services. In determining which professions 86 are to be granted reserved acts, the Council does need to determine if the profession is qualified to perform the reserved act. In selecting one profession to be qualified to perform reserved acts over other professions means the Council is determining which professions are better qualified. The determination o f the qualifications by the Health Professionals Council does place the responsibility with an appointed board with expertise instead o f decisions being made by politicians. In granting self-regulation to a health profession, the government has specified the appropriateness of division o f jurisdictions and functions between the professional and regulatory groups within a profession. The regulatory College’s sole responsibility is administration of the regulatory regime in the interest o f the public. There can no longer be joint professional and regulatory boards where there is potential conflict between the interests o f the profession and the interests o f the public. For both physiotherapists and massage practitioners, separation o f the regulatory and professional association boards was already established. The move to utilizing a reserved act model for defining the scope o f practice o f health professions removes unjustified barriers to health care services and thus changes the relationships between health professions. The study reveals that the move to the reserved act model enables more health professionals to felly use their knowledge and skills to provide care and reduces, but does not eliminate, the ability o f any one professfen to control an area o f health services. It is important to note that in B.C. it has not been mandated that all professions be regulated under the Health Professions Act (1996), but all professions are undergoing a review o f their scope o f practice. It is anticipated that the recommended definitions o f scope o f practice, once determined by the Health Professions Council, will be 87 given to the Minister o f Health for regulatory changes in all licensing acts whether or not the profession is regulated under the Health Professions Act (1996). A similar standardization occurred when implementing the regulatory responsibility o f continued competency as this requirement was placed as an amendment in all health professions’ regulatory acts. The use o f the reserved act model to define scope o f practice reduces regulatory barriers to the utilization o f professionals but, dependent on which reserved acts are granted to a profession, the granted reserved acts still allows a profession to retain control over services. Although physiotherapists have been designated to have some reserved acts that are determined to have significant risk o f harm, a large part o f physiotherapy practices are shared conqxtencies with other health care providers. The reserved act model for defining scope o f practice appears to do little to decrease physician monopoly over services. The medical profession appears to be granted all the controlled or reserved acts, which will continue to reinforce the traditional hierarchy o f physician control. Rappolt (1999), in analyzing the reserved act model for defining scope o f practices, states: However, by circumscribing medicine’s formally all encompassing and exclusive scope of practice, it has been possible for other professions to encroach on medicine’s traditional domain, (p. 121) Not granting diagnosis as a reserved act to (xofessions such as nursing and physiotherapy limits these professions’ ability to have shared competencies in the delivery o f health care and places a barrier to the fiill utilization o f professional conq>etencies to provide care. Physiotherapists and other professions including nursing are arguing that the reserved act o f diagnosis must be granted to professions other than medicine. It can be argued that concluding an assessment with a diagnosis determined within the competencies o f the profession occurs in everyday good practices as a necessary step in determining the most effective treatments to provide. Without this ability limits are being set on the services that can be provided. As well, the inability to conclude an assessment with a diagnosis continues physicians’ dominance in the delivery o f health care. This limitation is contrary to the given reasons for implementing in regulation the use o f open scope o f practice definitions. As the Health Professions Council has not yet concluded the review o f scope o f practice, the resolution o f this issue is yet to be detemined. Although the new legislation makes significant changes for regulatfon o f health professionals it is still very difficult for a member o f the public to know how to evaluate the quality o f the health services they receive. The legislation is silent on how to increase efficiencies in the delivery o f care and how to determine the most cost effective mix o f health care provider to be used. The new regulatory regime does shift increased responsibility to the consumers and funders o f health care to make informed decisions in choosing health care services. This study identified that there are barriers to effective public understanding and ability to make these decisions. There is an imbalance o f knowledge between health professionals and consumers and there are vulnerable consumers who may not be able to make sufficiently informed decisions. In health care, consumers have a direct service relationship with professionals and usually need services at a time when reliance on the professional’s knowledge and skill is paramount to their well-being. The utilization o f open scope o f practice definitions establishes the potential for an increased range o f services to be provided by a wider range o f both regulated and unregulated care providers. There are only a few reserved acts held exclusive to designated professions. Allowing unregulated caregivers to provide health care services further places the responsibility o f assessing quality o f care wholly onto the constuner and/or on the fiinder o f 89 the care. The new fi-amework has not been implemented long enough to evaluate whether this shift to increased consumer responsibility for decisions will result in harm to the public or if there is enough consumer awareness and knowledge to make informed decisions. The result of having only a few reserved acts is a shift towards determining incompetent practices o f a regulated professional by having enforceable standards o f practice within the regulatory structure. The ability to enforce standards o f practice is enhanced by the new legislation incorporating current principles o f administrative laws. For physiotherapists, this was extremely important because o f the outdated nature o f their old legislation. The value to consumers, employers and ftinders o f health care services o f using regulated professionals is enforcement of entry to practice, continuing competency qualifications and standards o f practice under which the professional works. The answer to the question of how the consumer will know who is or is not regulated is still unclear. The new act incorporates a process of designating professional thle(s) but this alone does not provide enough information to the consumer to know whether a given professional is regulated and what that means in terms o f services that the consumer can expect. The updated regulatory structure incorporates the necessary tools to carry out regulatory responsibilities and is set to ensure that the activities o f regulatory boards are effective and coordinated in the interest o f the public. The Act establishes the ability for the College Board to set and enforce standards o f practice at several levels. The process o f dealing with complaints and discipline is updated with current due process laws that will increase efficiency and provide a process where complaints are investigated and resolved in a manner that is satisfoctory and credible to the public. The traditional regulatory functions of establishing and enforcing entry to practice competencies and the approach for dealing with 90 in co n ^ten t practices by using a complaints and discipline system remains incorporated into the new regulatory framework. The new legislation clearly sets that it is the responsibility o f the College to establish, monitor and enforce standards of education and qualifications for registration. The means to enforce qualifications for registration are by setting entry to practice standards, including examination and approval o f educational programs. This responsibility to set entry to practice standards provides for the consiuner an assurance o f competency of the care provider. Through regulation under the Health Professions Act (1996), physiotherapists in British Columbia moved to using a national competency examination for entry to practice. Currently, changes are occurring in establishing, monitoring and enforcing standards of education. Potential issues that require further study include the validity o f current accreditation programs, how quality and standards are enforced for private and/or for profit educational programs, and how much control the profession, the Health Professions Council or the government should have on setting the educational requirements. A significant change with the new act is the regulatory responsibility to ensure continued competency throughout the career o f the regulated professional. There are many unanswered questions on the development, implementation and eventual measurement of the effectiveness o f continuing competence programs. The effectiveness of the regulatory changes implemented with the Health Professions Act (1996) will be determined over time by measuring whether the public is protected from harm and whether there is enhanced quality of health care. Measures o f effectiveness could include measures o f health status, measures o f quality o f care and outcomes, analysis o f cost effectiveness and efficiencies in the use o f health care manpower, and accountability measures such as the number o f complaints 91 received by Colleges. The government policy implemented with the Health Professions Act (1996) is for individual professional regulation under an umbrella framework statute. The new legislation sets a template for all professions but retains for each profession a separate College. The government also established a set of model or template bylaws to be used by all regulated health professions. The use o f consistent or similar bylaws raises the question o f whether or not public protection is best achieved with profession-specific standards or if it is feasible and more effective to have generic standards for all professions. Support o f the use o f common standards reflects an acceptance o f the premise that all professions will base their code of ethics and standards o f practice on agreed upon evidence o f valid practices, and on the values of society in which the professional is practicing. A move to generic standards presumes that there are no differing views among the professions. Such a move could become a way o f one profession dominating the standards of care and imposing one professional view o f client and health care situations onto other professions. There are multiple 6ctors to consider in how evidence relates to actual practice, a most dominant Actor being defining differences in professional philosophies and treatment approaches. Governments have historically kept the regulation of health care plans, delivery sites and health care professionals separate. It is increasingly important to ask if the lack o f integration amongst these systems of regulation contributes to a lack o f coordination and inefficiencies, thus affecting the quality o f health care. The implementation o f ensuring continuing competency requirements has increased health policy debate around the influence of professional regulation in the structure o f the work envvonment. Professional self­ regulation is established in recognition that the profession has the expertise to determine 92 standards o f care, but the impact on the work environment o f enforcing these standards acutely raises the question of whether the standards are there to protect the public or to promote professional control o f the work place. Trade agreements such as the Agreement on Internal Trade (AIT) are creating moves towards standardization o f regulatory fimctions and this may encourage a move towards joint professional regulation where several professions are regulated under one regulatory board and/or a move to a national regulatory framework. Some o f the strengths o f arguments for a national framework include increased uniformity of standards and enforcement, elimination o f multi-jurisdictional regulatory expenses and increased mobility between jurisdictions. Some possible weaknesses o f a national regulatory framework include the potential o f greater costs for administration and enforcement and decreased responsiveness for consumer protection because o f the size and scope of the responsibilities. Any change to a national regulatory framework would need to address the jurisdictional issue of the Provinces’ responsibility to regulate health care. It is also warranted to consider a policy option o f consolidating professions under one regulatory board instead of discrete individual Colleges. Prior to going under the Health Professions Act (1996) massage therapists and physiotherapists were regulated under one board. Under the new legislation separation was attained. A loss with the separation is the frtct that massage therapists and physiotherapists no longer meet routinely at the same regulatory table where there is the potential to address issues of inter-professional rivalry. Both professions have lesser resources to frind regulatory duties. With the current move to defining open scopes of practice and similar overlapping competencies between the two professions it is arguable that joint regulation could enable greater consistency in the development and 93 enforcement of common standards of practice. Issues for further study include a continued need to examine the outcome o f professional regulation on public protection, quality o f health services and costs in delivery o f health care. It is an ongoing question as to whether or not professional regulation is the most effective way for governments to protect the public and to direct the provision o f quality health care. Tied closely to this question is the evolving determination in society o f what constitutes acceptable, affordable and effective health care. The granting o f self-regulation to a profession does not mean there has been a determination o f which services are necessary, nor whether the services are effective. O f the many 6cets to be examined in determining effective regulatory policies an important facet is the characteristics o f professional dominance and the nature o f professionalism. 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The political context o f state regulation o f the health professions.The U.S. k a lth workforce: power, politics, and policv. (pp. 81-91). Washington, D C.: Association o f Academic Health Centers. 101 APPENDIX A The Act Respecting Naturopathic Physicians was passed 1936, amended 1937 for the registration and admission o f Physiotherapists and Masseurs. Regulations passed in 1938. Abridged Part n of the Regulations covered Restrictions for Physiotherapists and Masseurs as follows: 19.(1). No physiotherapist or masseur shall undertake the treatment o f any ailment, disease, defect o f disability o f the human body except under the prescription o f a physician legally qualified in the Province o f British Columbia to diagnose and prescribe treatment for such ailment, disease, defect or disability. (2) No physiotherapist or masseur shall make or attempt to make any adjustment o f any bony structure of the human body. (3) No physiotherapist or masseur shall use any form o f medicated bath except by prescription or under the direction o f a registered physician. Appointment o f Physiotherapist for Examinations. (20) The Board o f Naturopathic Physicians, for the purpose o f such examinations o f applicants for registration under this Part o f the Act as a physiotherapist or masseur, may appoint from time to time a registered physiotherapist to assist the Board o f Examiners in the examination for such applicants. Penalties. (23) Any person registered under this Part of the Act who commits any breach thereof or who willfully or wisely pretends to be a physician, doctor, or assumes any title, addition, or description other than registered physiotherapist’ or ‘registered masseur’ as the case may be, shall be liable, on summary conviction to pay a penalty not exceeding one hundred dollars nor less than twenty-five dollars and may be suspended or removed from the register by the Board. 102 The regulations further defined a physiotherapist as: 24. ‘Physiotherapist’ for the purpose o f this Act, shall mean any person who practices therapy by means of manipulations, mechanistic, hydro, thermo, helio, or electrical methods for the treatment of any ailment, disease, defect, or disability o f the human body, but who does not diagnose nor prescribe. Qualifications were defined as: 26. Any person, being twenty-one years o f age, on satisfying the Board o f Naturopathic Physicians as to moral character, may register under this Part o f the Act as a physiotherapist’ provided such applicant has passed the Junior Matrkulation in British Columbia or its equivalent, and has taken a four-year course in training in a college approved by the Board o f Supervision, consisting of: (a) Three years’ training in such fundamental studies as elementary physics and chemistry (preferably taken in the high-school course for matriculation), anatomy, physiology, personal and community hygiene, elementary nursing principles, elementary nursing methods, bandaging and first aid, rudiments o f elementary psychology, ethics o f nursing, foundatrônal principles o f preventative medicine (susceptibility, immunity, protection, elementary general bacteriology, (infectron and inflammation), elementary pathology, diseases amenable to treatment by massage (passive, active, controlled movements, gymnastic exercises), technique o f massage, usage o f assisting methods (baths, heat, light, electricity, instruments, and mechanical appliances), special massage (medical, surgical, orthopaedic, pediatric). (b) One years’ training in the special branches o f massage, and gymnastics at a school o f training for that purposes tqpproved by the Board o f Supervision, and passes such examinations as may be prescribed by the Board o f Examiners. Physiotherapists and Masseurs will also by regulation 30 denied the right to vote at any 103 meeting of the Association o f Naturopathic Physicians and by regulation 31 form advertising that they treat any specific disease. 104 APPENDIX B PROPOSED RESERVED ACTS IN BRITISH COLUMBIA 1. Communicating to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause o f systems of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis. 2. Performing a procedure on tissue below the dermis, below the surface o f a mucous membrane, in or below the surface o f the cornea, or in or below the surfaces o f the teeth, including the scaling o f teeth. 3.Setting or casting a fracture o f a bone or a dislocation of a joint. 4. Moving the joints o f the spine beyond the individual’s usual physiological range o f motion using a fast, low amplitude thrust. 5. Administering a substance by injection or inhalation. 6. Putting an instrument, hand or finger i beyond the external ear canal ii. beyond the point in the nasal passages where they normally narrow iii. beyond the lamyx, iv. beyond the opening o f the urethra, V. beyond the labia majora, vi. beyond the anal verge, or vii. into an artificial opening into the body. 7. Applying or ordering the application o f a form o f energy prescribed by the regulations under this act. 8. Prescribing, dispensing, selling or compounding a drug as defined in clause 113(1) of the Drug and Pharmacies Regulation Act or supervising the part o f a pharmacy where such drugs are kept. 105 9. Prescribing or dispensing, for vision or eye problems, subnormal vision devices, contact lenses or eye glasses other than simple magnifiers. 10. Prescribing a hearing aid for a hearing impaired person. 11. Fitting or dispensing a dental prosthesis, orthodontic or periodontal appliance or a device used inside the mouth to protect teeth &om abnormal functioning. 12. Managing labour or conducting the delivery o f a baby. 13. Allergy challenge testing o f a kind in which a positive result o f the test is a significant allergic reaction. 106 APPENDIX C PROPOSED RESERVED ACTS GIVEN BY THE HEALTH PROFESSIONS COUNCIL FOR MEMBERS OF THE COLLEGE OF PHYSICAL THERAPISTS OF BRITISH COLUMBIA a. Performing procedures below the dermis for purposes o f acupuncture for the management of pain and or/normalization o f physiological functioning o f the cardiorespiratory and neuromuscular systems to be granted to members o f the College o f Physical Therapists o f B.C. b. Moving the joints of the spine beyond the limits the body can voluntarily achieve but within the anatomical range o f motion using a high velocity low amplitude thrust: c. Putting a finger(s) beyond the anal verge for the purposes o f moving the joints o f the spine beyond the limits the body can voluntarily achieve but within the anatomical range of motion using a high velocity low amplitude thrust; d. Putting an instrument beyond the point o f the nasal passages where they normally narrow, beyond the pharynx, or into an artificial opening into the body for the purposes o f brachotracheal suctioning; and e. Administering on prescription, by inhalation or instillation, a mucolytic agent, bronchodilator, or analgesic solution listed in Schedule I or II o f the Pharmacists, Pharmacy Operations and Drug Scheduling Act. P. 3-4