Compassionate Regulation

Receiving a complaint from one’s regulator can be stressful. Studies have shown that participating in a complaints process increases one’s risk of experiencing mental illness, such as depression, and is associated with increased rates of self-harm. Some recent developments in the United Kingdom may be transferable to Canadian regulators, including those for lawyers.

In December of 2022, the UK medical regulator, the General Medical Council, announced a new protocol for notifying registrants of investigations through an initial telephone call:

To reduce anxiety for doctors the person dealing with the investigation will first email the doctor to arrange a phone call then introduce themselves as the doctor’s contact, explain what the immediate next steps will be and signpost them to relevant support services. This will be immediately followed up by written correspondence.

The discussion with the regulatory representative will also include ascertaining the registrant’s communication preferences. The regulatory representative will also conduct an assessment of whether the registrant might be vulnerable. This development builds on an independent review of the issue in 2014 and a detailed plan from 2020.

The detailed plan included the following initiatives:

  • Working with employers of registrants (who make many complaints and reports) to encourage them to deal with less serious concerns locally and only come to regulator for serious or unmanaged issues.
  • Conducting informal or provisional inquiries in appropriate cases (i.e., those in which necessary information can be obtained swiftly, where there is a single “clinical” incident, there are concerns about the registrant’s health, or the events arose during the COVID-19 pandemic where circumstances affected the registrant’s ability to meet all expectations).
  • Creating a specialist staff team to investigate matters related to the registrant’s health or where the registrant is vulnerable. This team has the authority to briefly postpone investigations to allow the registrant to seek treatment or other support.
  • Creating a single point of contact with the regulator so that registrants are not dealing with a revolving pool of staff members.
  • Notifying the registrant promptly and conducting the investigation quickly so that the registrant is not left waiting to hear the outcome for extended periods of time.
  • Commissioning an independent provider (a professional support organization) to provide, where desired, free and confidential emotional support to the registrant from a peer.
  • For registrants attending discipline hearings by themselves, offering “pastoral support” during the hearing.
  • Providing mental health awareness training to regulatory staff to assist in providing an appropriate response to a distressed registrant, spotting signs that a registrant is vulnerable, and obtaining specialist advice to enable sensitive and appropriate communications with the registrant.
  • Reviewing and revising the tone and language of written communications with the registrant to make the communications less accusatory. Legal information about the process is not contained in the body of the letter, but in a separate document.

Last November, the UK dental regulator also issued an independent study touching on similar issues. Many of the same concerns were identified (i.e., the complaints process can create significant stress, anxiety, and even thoughts of self-harm). Many of the proposed changes were also similar (e.g., reworking the tone and language of written communications, screening less serious concerns for more informal treatment, using a consistent staff contact who is trained in empathic communication skills, referring vulnerable practitioners to mental health resources). An additional proposal was that “upstream engagement activity” be undertaken by the regulator (i.e., including in the educational programs for registrants information about the role of the regulator and how regulatory processes work) could reduce stress if they ever received a complaint. In addition, such education should help future registrants “to understand how the professional standards work in practice, including through opportunities to discuss real-world examples of professional practice challenges and dilemmas.”

Both the medical and dental regulators have also identified and taken some steps to address the disproportionate impact of regulatory processes on racialized registrants.

Of course, employing compassionate regulation strategies raises fundamental questions about the role of professional regulators. While many strategies are consistent with regulating the profession (e.g., clear, timely, and sensitive communications), the notion of regulators “supporting” registrants is more debateable. The UK dental regulator’s report even goes so far as to state that the regulator works in “partnership” with registrants, a word that can lead to confusion about a regulator’s role. The medical regulator’s detailed plan speaks of striking a balance: “We have ensured that we continue to take robust action to protect patients, whilst also being compassionate in our communication with doctors.” The use of external support persons and agencies helps to avoid a conflict of interest.

Related to this need for balance, is the trend to providing greater support to individuals who raise concerns or make complaints against registrants. The dental regulatory study made a point of mentioning that many of these strategies (e.g., prompt, sensitive communications with one staff person from the regulator) applied to complainants as well as registrants. Notably, the new Health Professions and Occupations Act of British Columbia requires health regulators to provide free support services to vulnerable complainants and witnesses (e.g., those alleging discrimination or sexual abuse).

While many Canadian regulators are employing similar initiatives, the recent developments in the UK may help to systematically consider next steps.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

More Posts

The Business Did It

Business structures for registrants are quickly evolving in many sectors. Accountability for registrants is sometimes disputed where only the individuals, and not the business entities

A Suspension Is a Suspension

Ontario’s Divisional Court has upheld a finding that a registrant engaged in professional misconduct by trying to circumvent the impact of a suspension. In Casella

Couldn’t Disagree More

Can a regulator make a finding of professional misconduct against a registrant based largely on the evidence of a witness who has a strong motivation