Earlier this month, the Supreme Court of Canada declined to hear psychologist Jordan Peterson’s appeal from the decision of his professional regulator—the College of Psychologists of Ontario—requiring Peterson to submit to social media training. The college cited Peterson’s online statements he posted that it alleged may be degrading, posed a “moderate risks of harm to the public,” raised questions about his abilities as a psychologist, and risked bringing the profession into disrepute. Peterson, who has not operated a clinical practice since 2017, denounced the college’s actions as an unjustified imposition on free speech and expression, as well as an improper intrusion by a regulator into a member’s off-duty actions.
While the topic of free speech and professional regulation draws the most public attention, it is just one element in a related series of issues surrounding the mandate, powers, and social role of professions and their regulators. In Canada, professional regulators are primarily self-governing, which means they are not subject to significant government oversight.
They are also numerous. Here in Alberta, with its population of just under five million, health-care professionals alone have 30 different regulators. Compare that to just nine health profession regulators for the entire United Kingdom with its population of almost 70 million. Then, add to those 30 Alberta regulators the gamut of lawyers, teachers, architects, accountants, realtors, etc., and the list multiplies quickly. Replicate this across every province and territory and we find Canada covered by hundreds of regulatory bodies, all busily setting standards, employing staff, and disciplining members. British Columbia, to its credit, has attempted to consolidate and reform its professional regulators with some success.
Among the various problems with this plethora of professional administrators are that many of the organizations are poorly staffed, lack resources to conduct proper investigations, and produce a vast divergence of outcomes with little serious expertise in regulation or the broader issues they address. This might not be such a significant issue if regulators were statutorily limited to dealing with matters of immediate concern to professional competence. But as several examples have demonstrated, including Peterson’s, this is not the case.
In legal terms, this is a matter of jurisdiction. The first question a regulator must ask when faced with a complaint against a member is whether the regulator actually has jurisdiction over the matter. This question is almost always answered in the affirmative, on the basis that the individual is indeed a member of the profession. As a result, professional regulators are emboldened to assume jurisdiction over a broad swath of complaints including those that have little or nothing to do with the member’s on-duty professional behaviour.
Those who defend this regime typically state that it is settled law—that being a member of a profession means you have voluntarily submitted to its standards, including those that involve your off-duty actions. Of course, this isn’t so much an argument as an uncritical statement of the status quo. Historically, professions and trades tended to tightly control their membership. Leftover from this time is the notion that bad behaviour or speech on a professional’s part outside the office can “bring the profession into disrepute”. Originally, this was often used to police members’ morality and to keep out the unwanted. While its targets have changed, the notion of the upstanding professional, now more often “the right-thinking professional” retains its power to control its members’ behaviours and speech.
There are a few problems with this view. First, it is rather condescending and assumes that professionals have more social influence than they likely do. It suggests that the public is waiting with bated breath to hear the latest pronouncement from a professional with the expectation that said public will immediately and uncritically follow the declaration. However, as an adjunct lecturer in community health sciences at the University of Calgary, one of my main areas of interest is patient-centered care, in which the patient takes an active role in their treatment and is viewed as a member of the health team rather than a passive recipient. The patronizing notion of the professional as a revered expert imparting incontrovertible wisdom is largely a thing of the past.
The second problem is that professionals themselves have expertise in their own specialties and can often shine an important and sometimes critical light on areas in need of change within their profession. Recalling COVID-19 measures, one of the worst policies during the pandemic was the isolation of seniors in care facilities. We know now, and have known for some time, that family members are vital care providers to those living in assisted and long-term care homes. When the pandemic struck, family members were dismissed as tangential to patient care, banned from entering the facilities, and often replaced with poorly trained staff who had no experience with the patients under their charge. Had this dangerous policy been challenged or allowed to be challenged publicly by health providers not afraid to voice dissent, numerous deaths could have been prevented.
Carolyn Strom, left, arrives at the Court of Appeal for Saskatchewan in Regina, Saskatchewan on Tuesday September 17, 2019. Michael Bell/The Canadian Press.
It is heartening that there have been some recent cases recognizing the importance of a professional retaining a degree of freedom of speech. One of the most important, and one that I had some input on, is the Carolyn Brost Strom case out of Saskatchewan.
Carolyn is a registered nurse who took to social media to publicly criticize the care her dying grandfather received in a long-term care facility. While she did not name a specific caregiver and did acknowledge effective aspects of his care, she made the mistake of naming the facility. This resulted in a complaint by staff at her grandfather’s residence, leading to an investigation and hearing by her professional regulator that fined her $26,000. She appealed the decision to the Court of Queen’s Bench. The justice upheld the regulator’s ruling, citing all the usual old tropes about deference to administrative tribunals and the professional’s willing submission to regulatory interference, all in the name of protecting the profession’s reputation.
Carolyn then took her case to the Saskatchewan Court of Appeal where she won a unanimous decision, overturning the regulator’s disciplinary fine. The court wisely and thoroughly set out several factors to consider when a regulator intervenes in the public speech of a member, finding that the regulator failed to take a contextual approach to the matter at hand.
My personal interest in Carolyn’s five-year ordeal, and the role of regulators in general, comes from my own family’s personal experience when my sister, a registered nurse, was wrongly investigated by her own regulator. The context for this harrowing experience was my father’s badly managed death in a care facility, a situation in which my sister was not on duty but was a member of the public simply questioning care. Eventually, the regulator dismissed the allegations against her, but only after conducting an eight-month investigation that caused harm to my family, the very people the regulators are mandated to protect. To its credit, the regulator then reviewed its complaint processes and made changes, including an informal decision not to take jurisdiction on cases like my sister’s.
My sister’s regulator recognized that its broad interpretation of its statutory jurisdiction ended up harming the very public it was tasked with protecting. Professional regulators should not have the authority to delve into the off-duty actions or speech of their members. In legal terms, their jurisdiction should be limited to behaviors directly related to their professional duties, or where a member has been engaged in criminal conduct. Anything further exposes members and the public to abuse by regulators as well as a vast divergence in outcomes due to the excess of regulators across Canada. There are other examples I could cite, including the behaviour of the Law Society of Ontario. That these are so common is indication enough that it is time to curtail the inappropriate authority granted to Canada’s professional regulatory regimes.
