The Interprofessional Council of Quebec has released a major study on the overarching approach to regulating professions. It is written by professors Popescu and Issalys from the faculty of law of Laval University. It examines whether regulation by objectives would be the preferred method of regulation. In very general terms, regulation by objectives involves establishing the goals intended to be achieved and leaving to the participants (here, regulators and practitioners) discretion as to how the goals can best be met in the circumstances. This approach can be contrasted with prescriptive regulatory approaches in which the means to achieving the goals are expressed in detail in legislation and regulations. The value of an alternative approach to regulation is indicated by the complexity and prolixity of the current regulatory regime (the authors note the regulatory regime for professions in Quebec is made up of about 770 legal documents).
The report begins with a theoretical discussion of the concepts and a description of the current regulatory regime for professions in the province. The discussion of the public interest served by the regulatory scheme is particularly interesting, identifying five principal components:
- The quality of professional services,
- The regulation of the profession by a professional order,
- State oversight of the professional orders,
- Restricting who can provide professional services, and
- Public participation in the regulation of professions.
It then examines in detail two aspects of the regulatory scheme: (1) the approach to regulating the practice of the professions and (2) the selection of boards, committees, and leaders of the regulatory orders.
The report concludes that, in most circumstances, regulation by objectives would have more disadvantages that advantages. First, while the general goals of the regulatory regime can be easily stated, they are so broad and indefinite that increasing amounts of subobjectives must also be established. Also, it is quite difficult to specify and measure the achievement of the objectives. Second, regulation by objectives is inherently more ambiguous than prescriptive regulation. That makes legal enforcement of a failure to meet an objective challenging, especially in the context of professional regulation (e.g., discipline hearings). Third, the process for proposing, consulting on, and approving an entirely new set of meaningful provisions prescribing objectives and the threshold for their achievement would be formidable within the current Quebec process.
As an alternative to both the current approach and regulation by objectives, the authors recommend that regulatory rules be combined, wherever possible, into one common provision applicable to all of the regulatory orders. The example of having multiple sets of detailed rules for the election of board members (e.g., varying electoral notice periods) illustrates the unnecessary diversity of the current regime.