SELF-REGULATION IN NOVA SCOTIA

SELF-REGULATION

IN NOVA SCOTIA

A GUIDE FOR NOVA SCOTIA GOVERNMENT DEPARTMENTS

Prepared by the Advisory Committee on Self-regulation

Updated to November 25, 2016

Table of Contents

Self-regulation in Nova Scotia: A Guide for Departments ..........................................2

Introduction ..................................................................................................................................... 2

Who is the guide for? ...................................................................................................................... 2

What is self-regulation? .................................................................................................................. 3

Government’s approach to self-regulation ...................................................................................... 3

Roles and responsibilities ............................................................................................................... 4

Preparing a request for legislation .................................................................................................. 5

Analyzing the proposal ...............................................................................................6

Policy directives .............................................................................................................................. 6

Assembling a team to analyze the proposal .................................................................................... 6

The tests to be met .......................................................................................................................... 7

Analyzing proposals to establish new self-regulated professions................................................... 7

Step 1: Preliminary analysis ..................................................................................................................... 7

Step 2: In-depth analysis .......................................................................................................................... 7

Considering impacts........................................................................................................................ 8

Engagement..................................................................................................................................... 9

Preparing Requests for Legislation and draft bills ................................................... 11

Who holds the pen? ....................................................................................................................... 11

Policy directives ............................................................................................................................ 11

Issues to consider .......................................................................................................................... 11

Fair registration practices and the Agreement on Internal Trade ................................................. 12

Mandate......................................................................................................................................... 13

Governance and accountability ..................................................................................................... 13

Ministerial roles and responsibilities ..................................................................................................... 14

Composition of the profession’s governing body ................................................................................... 14

Annual general meetings and special meetings ...................................................................................... 15

Reporting to members, ministers and the public .................................................................................... 15

Approval of regulations and by-laws ...................................................................................................... 15

Determining the content of legislation, regulations and by-laws ................................................. 16

Complaint investigation and discipline ......................................................................................... 18

Offences and enforcement ............................................................................................................ 22

Licensing business organizations .................................................................................................. 24

Other resources ....................................................................................................... 26

Appendix A: Fact Sheet for Proponents: Proposals respecting Self-regulation in

Nova Scotia .............................................................................................................. 27

Appendix B: Engagement ........................................................................................ 34

Self-regulation in Nova Scotia: A Guide for Departments

Introduction

Self-regulation has significant implications for the economy, labour mobility and immigration.

Given that, any proposal in respect to establishing or altering a self-regulated profession must be

considered carefully. Historically, the Province has not taken a consistently robust approach to

reviewing such proposals which has sometimes resulted in decisions based on too little analysis.

However, in December 2016, Treasury and Policy Board approved a new Policy respecting Self-

regulated Professions. The objectives of the policy are to ensure the Board receives complete,

accurate and relevant information upon which to make decisions respecting self-regulated

professions and to improve the quality and consistency of submissions requesting new or

amended legislation. The policy establishes tests for determining when proposals for legislation

respecting self-regulated professions will be approved and requires departments to conduct a

thorough examination of all proposals before they are submitted to Executive Council for review

and approval.

Who is the guide for?

This guide is primarily intended to assist departmental staff responsible for examining proposals

for new or amended legislation respecting self-regulated professions and making

recommendations in respect to them. It will also be of assistance to staff reviewing proposed

regulations made under such legislation.

The Guide may be shared with the individuals and

groups making proposals to assist them in understanding government’s approach to reviewing

and analyzing those proposals. A Fact Sheet for Proponents, which is designed to assist

individuals and groups interested in making a proposal for new or amended legislation, is

attached as Appendix 2.

Though the guide provides useful guidance and recommendations on many of the issues

departments need to consider when examining proposals respecting self-regulation, it is not

exhaustive. Departments are encouraged to seek further advice and guidance from their

Department of Justice solicitors, Executive Council Office (ECO) cabinet advisors, the Advisory

Committee on Advisory Committee on Self-regulation

Typically, staff are called on to review regulations when regulations are made or approved by a Minister or

Governor in Council.

The Advisory Committee on Self-regulation is a cross-departmental working group comprised of individuals with

interest and experience in issues related to self-regulation. The Terms of Reference for the Committee were

approved as Schedule C of the policy.

What is self-regulation?

Self-regulation is a privilege granted to professions in the public interest. Professions do not have

a “right” to regulate themselves. Rather, self-regulation is one of many instruments government

may choose in an effort to protect the public and reduce risks associated with incompetent and

unethical practice.

Self-regulation comprises two key elements: the authority to register and license members; and

the authority to investigate and discipline them. Legislation that confers self-regulated status on a

profession imposes a regulatory framework, and give the profession the powers it needs to

develop, implement and enforce rules to protect the public and ensure members of the profession

provide services in a competent and ethical manner.

The powers and duties conferred on professions vary considerably, but usually include at least

the power and duty to:

• Govern and manage the body charged with overseeing the profession;

• Set standards and requirements to be met by those wishing to enter the profession;

• Set standards of practice for members of the profession;

• Make and enforce rules with respect to complaints investigation and discipline; and

• Prosecute offences under its legislation.

It’s important to distinguish between “professional associations”, which are established to

advance the interests of the profession and its members, and “self-regulated professions”, which

empower professions to regulate themselves in the public interest. Members of a self-regulated

profession (sometimes referred to as “registrants”) have, in all circumstances, an ethical and

legal duty to put the interests of clients/patients and the general public ahead of their own

interests.

Government’s approach to self-regulation

The primary purpose of self-regulation is to address risks of harm and serve the public interest.

Therefore, the government grants powers of self-regulation only when it is in the public interest

to do so. Self-regulation is not granted for purposes of serving the interests of the profession

itself and should impede competition and increase costs only to the extent necessary to protect

the public from real and substantial risks.

To determine whether self-regulation is the right policy instrument, government first considers

whether the provision of by members of the profession raises serious risks of harm. Where risks

are identified, it next considers the options available for addressing them. In general, government

will not impose any form of regulation, including self-regulation, unless there are real and

substantial risks of harm to individual consumers or clients and self-regulation is the most

efficient and effective means of addressing them.

Second, government requires those proposing self-regulation to demonstrate the profession has

or will have adequate resources to implement self-regulation and that its members understand the

duties and responsibilities they will assume if self-regulation is granted. The resources required

to implement self-regulation are significant since, in most cases, professions must fund their

activities through fees paid by their members. For that reason, it is unusual for government to

authorize smaller groups to self-regulate

Lastly, government requires the profession to demonstrate it exercises a defined body of

knowledge and skills, generally acquired through specific education and experience, which does

not overlap significantly with that of any other profession. If the profession’s body of knowledge

is too broad or poorly defined, or is already exercised by another profession, an effort should be

made to clarify the profession’s proposed scope of practice and ensure any implications for other

professions are understood before a formal request is submitted to Executive Council for

consideration.

Roles and responsibilities

Though most legislation respecting professions is initially proposed by the professions

themselves, departments have important roles to play in determining the final content of formal

requests for legislation and draft bills. The policy requires that Departments review all proposals

to ensure that they reflect sound policy analysis and comply with policy.

The roles and responsibilities of key players in the process of reviewing proposals and

developing the final bill are described briefly below.

Profession/occupation

• Proposes the enactment of new legislation or amendments to existing legislation

governing the profession

• Offers input and advice regarding the content of the legislation (but should not draft

proposed legislation), often with the assistance of private legal counsel

Department

• Conducts a preliminary analysis of the proposal, which includes comparing it with other

options for addressing the identified risks

• Makes a recommendation to the Minister regarding whether the proposal should be

considered further

• Undertakes further examination and makes a recommendation to the Minister regarding

whether a formal request for legislation should be prepared

• At the Minister’s direction, prepares a formal request for legislation (including drafting

instructions)

Government sometimes permits smaller groups to be regulated in concert with one or more related professions –

e.g. In Nova Scotia, veterinary technologists are regulated under the Veterinary Medical Act.

• Where the request is approved, provides Legislative Counsel with the information and

direction needed to prepare the draft bill

Minister

• Considers the proposal and recommendations of departmental staff, and provides

direction in respect to development of a formal request for legislation

• Signs the request for legislation

• Introduces the bill in the House of Assembly

Advisory Committee on Self-regulation

• Provides analysis and advice to assist departments as requested

• As and when requested, provides advice and recommendations to Executive Council

Legislative Counsel Office

• Drafts legislation in accordance with approved requests

Preparing a request for legislation

Requests for legislation (RFLs) respecting self-regulation follow the same process as other

RFLs. They take the form of a Memorandum to Executive Council prepared by departmental

staff and signed by the Minister. (Templates for required documents are available on-line at:

http://www.novascotia.ca/treasuryboard/manuals/100forms.htm.)

When a proposal respecting self-regulation is received, departments should immediately advise

their Executive Council Office (ECO) cabinet advisor. The cabinet advisor can provide guidance

on conducting the analysis required by the policy, and confirm that a similar or related proposal

is not being considered by another department.

If the department or the cabinet advisor concludes the department lacks the capacity to analyze

the proposal on its own, the Advisory Committee on Self-regulation may be asked to review it

and provide the department with guidance and support or recommend that another department be

assigned to analyze it.

Analyzing the proposal

Policy directives

The policy contains specific directives regarding the analysis of legislative proposals in relation

to self-regulated professions. Departments are encouraged to review the directives early in the

process to ensure compliance with the policy.

Where a profession proposes amendments to existing legislation rather than an entirely new

statute, departments should reflect on the content of this guide, and seek advice from their ECO

cabinet advisors and/or the Advisory Committee on Self-regulation regarding whether it is

appropriate to deal with the proposed amendments in isolation or in the context of a more

comprehensive review of the existing legislation. The policy requires that the department take

into account at least the following factors in making that determination:

• The history of the existing legislation;

• Whether existing legislation is consistent with government’s current policy objectives in

respect to self-regulated professions;

• Whether the profession has demonstrated a robust capacity and commitment to regulating

itself in the public interest; and

• The significance and urgency of the issues the proposed amendments are designed to

address.

Where there have been no significant issues with the legislation, the profession has demonstrated

a robust capacity and commitment to governing the profession in the public interest, and the

existing legislation is consistent with government’s current policy objectives, a comprehensive

review will rarely be needed. Likewise, amendments required to address significant and urgent

risks will normally proceed without delay.

Assembling a team to analyze the proposal

Departments play an important challenge function in respect to any proposal to establish a new

self-regulated profession or to amend existing legislation. Because of that, departments that

employ persons who are members of the profession should ensure the team reviewing the

proposal includes individuals who are not members of the profession and that any conflicts of

interest are identified and addressed. For example, team members who are members of the

profession should be reminded of their duty to protect confidential internal discussions from

inappropriate or premature disclosure to other members of the profession, and may need to be

excluded from some discussions.

The team reviewing a proposal should generally include the department’s solicitor and ECO

cabinet advisor, and may include staff of other departments and representatives of the Advisory

Committee on Self-regulation.

The tests to be met

The policy articulates the tests to be met when new legislation is proposed. Departments should

review the tests early in the process and take the steps necessary to ensure they are able to

demonstrate that those tests have been met as part of their formal requests for legislation.

Analyzing proposals to establish new self-regulated professions

In general, it is recommended departments adopt a two-step approach to analyzing proposals for

new legislation:

Step 1: Preliminary analysis

The department should begin with a preliminary analysis to determine whether there is any real

possibility self-regulation for the profession. Appendix A includes two questionnaires designed

to assist departments in gathering the information needed to conduct a preliminary analysis. The

goal of the analysis is to confirm that:

• There are substantial risks to clients, patients and/or the public which are not remote and

cannot be addressed more efficiently and effectively through other means; and

• The profession has or can be expected to develop the capacity to self-regulate.

If the identified risks are remote or not sufficiently substantial, or if the profession does not have

and cannot be expected to develop the capacity to self-regulate, an in-depth analysis will rarely

be needed to conclude the request should be rejected.

On the other hand, if the profession demonstrates there are real and substantial risks and the

profession appears capable of undertaking duties and responsibilities that come with self-

regulation, the department should move to the next step and carry out a more in-depth analysis.

Step 2: In-depth analysis

As part of its in-depth analysis, the department should consider matters such as:

• Likely impacts on government, consumers, clients, employers and other professions;

• Likely impacts on internationally trained/educated professionals and labour mobility

applicants;

• Likely impacts on access to good and services, especially in rural areas;

• Proposed governance and accountability of the governing body;

• Mechanisms for resolving potential conflicts with other occupations or professions;

• Mechanisms proposed for registering members and ensuring they maintain professional

competence; and

• Mechanisms by which complaints will be investigated and resolved.

The purpose of the in-depth analysis us to gather the information needed to enable the

department to prepare a formal request for legislation and drafting instructions. Guidance

regarding many of the issues to be addressed in preparing drafting instructions is provided in the

next section of the guide. Before turning to those, departments are encouraged to undertake a

thorough analysis of the impacts of creating a new self-regulated profession and work with

proponents to plan and implement an appropriate stakeholder engagement processes.

Considering impacts

It is sometimes assumed that self-regulation has no costs or other impacts for clients or the public

because professions fund their operations through membership fees. In fact, self-regulation often

has significant impacts – for members and potential members (including foreign trained

professionals), other professions, clients, consumers, employers and government. Therefore, it is

important that the potential impacts of any new or amended legislation (and associated

regulations) be assessed, and that government withhold approval until it is satisfied the

legislation will result in real and substantial benefits to stakeholders, the desired benefits are

likely to outweigh the costs, and cheaper and more effective options for addressing identified

risks are unavailable.

Whether the request is for new or amended legislation, departments should consider what the

impacts are likely to be, and (where possible) to compare those with the impacts of other options,

which may include maintaining the status quo, public education, adoption of a voluntary code,

and/or government regulation.

Impacts to consider include:

• Entry to the profession: Will new entrance requirements be imposed? Who will bear the

costs of complying with those requirements? Will new entry requirements discourage

immigration of skilled workers or undermine labour mobility? Will regulators be able and

willing to work collaboratively across jurisdictions to determine a common scope of

practice that would enable labour mobility?

• Continuing education requirements: Will continuing education requirements be imposed?

Who will bear the costs of complying with those requirements? Consider, for example,

members of the profession, employers (including government) and clients/customers.

• Professional standards: Will new professional standards be imposed? Will there be fair

and transparent pathways to registration or licensure for applicants from other

jurisdictions? Who will bear the costs of complying with them? Consider, for example,

members of the profession, employers and clients/customers.

• Establishing and operating the profession’s governing body: Who will bear the costs

associated with supporting the governing body and investigating and remedying

complaints?

• What impacts will self-regulation have on the cost and availability of services for clients,

customers and employers?

• What impact will the proposed self-regulation have on other professions?

• What burden will government bear in respect to making appointments, reviewing and

approving regulations and by-laws, amending legislation if required, responding to

complaints or concerns about the profession, and dealing with any issues that arise from

the Fair Registration Practices Act and the Agreement on Internal Trade.

Similarly, the benefits of self-regulation should not be assumed, but instead clearly identified and

(where possible) quantified. Ideally, the individual or group proposing self-regulation will be

able to provide data regarding expected benefits, which may include:

• Improved delivery of goods and services;

• Anticipated reduction in the number of injuries and/or damage to clients;

• Timely and effective resolution of complaints; and

• Improved access to competent service providers.

Quantifying benefits is often more difficult than quantifying costs but cross-jurisdictional

research can sometimes be helpful in filling gaps.

There is no simple formula for determining which impacts should be given the most weight.

Much depends on the particular circumstances in each case. The goal of the exercise is simply to

ensure Executive Council has the information it needs to make a fully informed decision.

The final step in the impact analysis is to compare the expected impacts of self-regulation with

those of other available options, which may include maintaining the status quo, voluntary codes,

education and government regulation. In general, government is reluctant to create a new self-

regulated profession unless there is clear evidence that:

• The proposed regulation will result in tangible benefits for clients and/or the general

public;

• The benefits are likely to outweigh any costs or other negative impacts; and

• Better, more cost-effective options for addressing identified risks are unavailable.

Engagement

Government expects professions and departments to work together to seek input from relevant

stakeholders (including the general public in some cases) before final decisions are made.

As discussed in more detail in Appendix B, engagement can take a variety of forms but, in every

case, the goal is to conduct engagement activities appropriate to the circumstances in a consistent

and transparent manner. In general, engagement should focus on underlying policy issues rather

than on the specific wording of draft bills or regulations.

At a minimum, an engagement plan should include:

• Clear purpose(s);

• Expected results or outcomes;

• A description of the engagement process, including how it will work, and who will be

involved;

• Information on how feedback will be provided to participants and how results of the

engagement process will be used; and

• An evaluation of the engagement process.

In addition, the plan should specify how any issues related to diversity and accessibility are to be

addressed.

The engagement plan may be planned and implemented by the profession seeking the legislation

but, where possible, input from the department and its cabinet advisor should be obtained prior to

implementation. If stakeholders have already been engaged, the department and cabinet advisor

should review the form and results of that engagement and provide direction and guidance when

further engagement is needed to fill gaps. In some cases, departments may be advised to seek the

approval of Executive Council prior to engaging with stakeholders.

At a minimum, it is recommended the following stakeholders be consulted on any request for

new or amended legislation regarding a self-regulated profession:

• A cross-section of members of the profession;

• Major employers;

• Professions or occupations that perform similar or related services;

• Government departments with an interest in the goods and services provided by the

profession; and

• Fair Registration Practices Act Review Office.

For further assistance on conducting engagement activities, departments are encouraged to

consult Appendix B and review plans with their cabinet advisors prior to implementation.

Preparing Requests for Legislation and draft bills

Who holds the pen?

In Nova Scotia, all bills are drafted by the Office of Legislative Counsel in accordance with

drafting instructions provided in approved Requests for Legislation (RFLs), which are prepared

by departments and approved by Executive Council (Cabinet). If and when issues arise in the

course of drafting, departmental staff (with the support of their Department of Justice solicitors)

are responsible for providing Legislative Counsel with the direction needed to resolve them, and

may consult with proponents and other stakeholders as necessary.

Where the final form of a draft bill deviates from the drafting instructions contained in the RFL,

departmental staff are responsible for ensuring Executive Council is aware of and approves of

the deviations prior to the bill being introduced in House of Assembly

Historically, professions have sometimes requested that government enact draft bills prepared by

their own solicitors, but that practice is now discouraged. Draft bills prepared by private sector

lawyers impose unnecessary costs on the profession and sometimes make the job of Legislative

Counsel more difficult.

Policy directives

The policy contains specific directives with respect to the preparation of legislation governing

self-regulated professions. Departments are encouraged to review the directives early in the

process and ensure final drafting instructions provided in RFLs and draft bills comply with the

policy.

Issues to consider

This section of the Guide contains an overview of key issues that need to be considered as RFLs

and draft bills are being prepared. The information is organized around the following themes:

• Fair registration practices and the Agreement on Internal Trade;

• Mandate;

• Governance and accountability;

• Powers to make regulations and by-laws;

• Complaint investigation and discipline;

• Offences and enforcement; and

• Licensing business organizations.

The guidance below is not exhaustive. It is designed to assist departments in understanding key

policy objectives, evaluating proposals made by professions, preparing RFLs, and providing

instructions to Legislative Counsel with respect to the preparation of draft bills.

For further guidance, departments are encouraged to consult their departmental solicitors,

legislative counsel, ECO cabinet advisors, the Advisory Committee on Self-regulation.

Fair registration practices and the Agreement on Internal Trade

Nova Scotia’s Fair Registration Practices Act (FRPA) is intended to apply to all self-regulating

professions

and requires them to establish registration practices that are transparent, objective,

impartial and procedurally fair. The act implements the Province’s commitments under the

Agreement on Internal Trade (AIT)

, which puts the Province at risk in the event another

jurisdiction successfully prosecutes a dispute on behalf of a certified worker. Satisfying FRPA

requirements has the added benefit of supporting the immigration of skilled workers with foreign

training and credentials.

Key FRPA requirements include the following:

• Where an applicant is denied registration, the regulating body must provide written

reasons to the applicant within a reasonable time;

• The regulating body must provide an internal review process within a reasonable time;

• The applicant must have the opportunity to provide new information and make

submissions with respect to an internal review;

• The applicant must be afforded the right to access records held by the regulating body,

except in limited circumstances;

• No one who was a decision-maker in respect to the initial denial of registration may act

as a decision-maker in the internal review; and

• Regulatory bodies must ensure individuals who act as decision-makers on internal

reviews are appropriately trained.

As part of the general oversight of fair registration practices under FRPA, regulatory bodies are

required to file reports with the Review Officer. For a full list of the matters to be included in the

report to the Review Officer, see section 16 of FRPA.

The Act applies only to regulating bodies listed in Schedule A to the Act, and currently Schedule A does not reference all self-

regulated professions. However, Nova Scotia’s obligations under the Agreement on Internal Trade apply in respect to all such

professions so work is underway to amend the Act and/or Schedule A to ensure they more closely align with those obligations.

In Canada, regulating bodies are only permitted to regulate within their own provincial or territorial jurisdictions. Under the

Agreement on Internal Trade (AIT), professions may not refuse to register/certify an applicant who practices a profession with

the same scope of practice in another jurisdiction. Registration or certification may only be refused where there are material

differences in scope of practice. Exceptions must be based on a legitimate objective and approved by Executive Council.

For further information about the AIT and the process for resolving disputes under it, departments should contact the Labour

Mobility Coordinator at the Department of Labour and Advanced Education.

Mandate

Government’s main goal in regulating a profession is to protect the public from harm that may

result from an imbalance in knowledge between service providers and recipients. Consequently,

the primary duty of any self-regulating profession is to regulate the practice of the profession in

the public interest. It is this duty to serve the public interest rather than the interests of the

profession itself that distinguishes regulatory bodies from professional associations. To that end,

the profession should ensure admission to the profession is guarded by appropriate standards of

qualification and that members continue to satisfy standards of competence and conduct once

they are admitted.

As required by the policy, legislation governing a self-regulated profession must articulate a

clear mandate and impose on the profession a primary duty to regulate its members in the public

interest. Typically, that mandate will also incorporate duties to carry out the following activities:

• To regulate the practice of the profession and govern its members through registration,

licensing, investigation, discipline and other processes specified in legislation and

regulations;

• To develop and promote a code of ethics;

• To establish and promote standards of practice of the profession;

• To establish and promote continuing professional development programs; and

• To prosecute offences under its legislation.

While self-regulated professions sometimes offer support and services to their

members/registrants, the provision of such support and services must never compromise their

ability to regulate effectively by, for example, creating real or perceived conflicts of interest. In

fact, increasingly, the trend (particularly in the health sector) is away from allowing one

organization to carry out both sets of functions. However, government may permit a self-

regulated profession to provide membership support and services, where it is satisfied that any

risks associated with doing so can be effectively mitigated. In making that decision, government

will generally take into account the nature of the risks raised by the delivery of supports and

services provided to members, the proposed mechanisms for mitigating those risks, and the

history and capacity of the profession.

Governance and accountability

Legislation governing a profession should establish governance and accountability mechanisms

that enable it to be fairly and effectively governed and appropriately accountable to members,

government and the general public. The mechanisms vary but should generally address at least

the following matters:

• Ministerial roles and responsibilities;

• Composition of the profession’s governing body;

• Annual general meetings and special meetings; and

• Reporting to members, ministers and the public.

• Approval of by-laws and regulations

Each of these matters is explored below.

Ministerial roles and responsibilities

Historically, legislation that did not specify a responsible minister was treated as being the

responsibility of the Minister of Justice. To avoid that result, legislation should always specify

the minister responsible for the legislation and for fulfilling any duties imposed on the minister

by the legislation.

Generally, it is appropriate to assign responsibility for the legislation to the minister whose

department works most closely with the profession, and/or has the best understanding of the

services it provides. However, in making that determination, it is important to consider possible

conflicts of interest.

For example, if the department that works most closely with the profession also employs

numerous members of the profession, it may be prudent to assign responsibility to another

department in order to address real or perceived conflicts of interest. Alternatively, the minister

could be provided with support and advice by staff from other departments.

The legislation may also impose specific duties on the minister with respect to oversight of the

profession. For example, the minister may have responsibility for receiving annual reports,

periodically reviewing the legislation, appointing public representatives and/or approving

regulations. At a minimum, it is recommended the minister be granted power to request and

obtain any information the needed to ensure the profession is fulfilling its duties and

responsibilities under the legislation.

Composition of the profession’s governing body

Self-regulated professions are typically governed by a body composed of persons elected by

members of the profession and public representatives appointed by government. The role of

public representatives is to bring broader public interest perspective to the body’s deliberations,

while fulfilling the same duties as other members.

In general, a profession’s governing body should be composed of between 7 and 11 members,

with at least one third of those members being public representatives appointed by the Governor

in Council or the responsible minister. The legislation should also ensure that:

• The governing body of the profession is broadly representative of its members, including

those who practice in different sectors and regions of the province;

• Election and appointment processes for selecting members provide opportunities to

enhance diversity over time; and

• Public representatives are selected from amongst persons who are independent of the

profession and able to bring a broader public interest perspective to deliberations.

In addition, any statutory committees (typically, those responsible for reviewing registration

decisions and dealing with investigation and disciplinary matters) should include at least one of

the public representatives appointed by government.

Members of the governing body other than public representative members should be elected by

the profession’s membership in accordance with fair, open and transparent election procedures.

Persons with personal or professional conflicts of interest should be expressly prohibited from

appointment as public representatives.

Annual general meetings and special meetings

Legislation governing a profession should establish clear requirements for holding annual

general meetings and special meetings. For example, legislation often requires governing bodies

to organize annual general meetings to which all members are invited and give members

reasonable notice of such meetings. In addition, legislation should provide some mechanisms by

which ordinary members may request that special meetings be held.

Reporting to members, ministers and the public

The policy requires that legislation create appropriate mechanisms for ensuring accountability of

the governing body to members of the profession, the responsible minister and the general

public.

The mechanisms for accountability and reporting can vary but, in general, should at least include

requirements that:

• The governing body provide annual reports (including financial statements) to members;

• The governing body file annual reports with the responsible minister in a form, with the

content and in a timeframe acceptable to the minister; and

• The public be notified when a member has been suspended, has had their practice

restricted, or has been barred from practice.

Approval of regulations and by-laws

One of the most challenging issues in respect to governance and accountability is deciding which

regulations and/or by-laws should require the approval of government and/or members of the

profession. Historically, practices have varied considerably across jurisdictions and professions.

In some cases, governing bodies have the power to make by-laws and regulation without

obtaining the approval of either members or government. In others, the approval or one or both is

required.

The main objectives of approval requirements are to encourage governing bodies to consult

adequately with those affected by the rules; to provide transparency in regards to decision-

making; to ensure rules serve the best interests of the public; and to engage members in the

regulation of their profession.

However, approval requirements can have undesirable consequences as well. In particular, they

can cause unreasonable delays in decision-making, and enable members or other stakeholders to

block decisions that are not in their own best interests.

In determining whether approvals should be required, therefore, it is important to consider the

content of the regulations or by-laws, who will be affected by them, how much transparency is

needed, and whether delays in decision-making would pose significant risks to the public. In

addition, departments should consider whether other mechanisms could be used to meet

government’s objectives. For example, legislation might include a requirement that members

and/or government be consulted or notified before rules are made, and grant the Minister a power

to amend or revoke regulations or by-laws where the Minister concludes they are not in the

public interest.

Determining the content of legislation, regulations and by-laws

The policy provides that any powers to make regulations and by-laws be granted in accordance

with a number of principles, namely:

• Legislation and regulations governing self-regulated professions should be drafted in

accordance with the drafting conventions that apply to other sorts of legislation and

regulations;

• Powers may be distributed in various ways across legislation, regulation and by-laws,

provided they are distributed in a manner that strikes a balance acceptable to government

between granting the flexibility and autonomy professions need to regulate themselves

effectively and furthering other key policy objectives (such as minimizing unnecessary

regulation, and establishing an appropriate degree of transparency, stakeholder

engagement and accountability to clients, members, government and the public);

• In the interest of transparency, matters of interest to those outside the profession

(including government, the general public, potential members, employers and or

clients/patients) should normally be dealt with in legislation or regulations made or

approved by government rather than in by-laws;

• In determining whether a matter will be dealt with in legislation, regulations or by-laws,

the department should consider the following questions:

o Whose interests may be affected?

o Who needs ready access to the rules?

o Is public accountability and transparency needed to maintain public confidence in

the profession and/or the legislative scheme?

o Is the matter one that could have significant implications for clients, the public

and/or some segment of the profession?

o How frequently do the rules respecting the matter require updating?

• The legislation should establish rules respecting the creation of regulations and by-laws

that enable members have an appropriate degree of involvement in their development but

do not impede the profession’s ability to regulate itself in the public interest; for example,

legislation should generally include a requirement that members be consulted on

proposed regulations and by-laws and may, in appropriate circumstances, require that by-

laws be approved or ratified by members.

The chart below summarizes matters typically addressed in each instrument.

Instrument

Matters typically addressed by the instrument

Legislation

• Required composition of the governing body of the profession, including requirements

respecting public representation and key committees (e.g. complaints investigation

and disciplinary committees)

• Scope of practice

• Key elements of investigation and complaints procedures

• Basic requirements for licensing, obtaining permits, etc.

• Offences and enforcement

• Rights of appeal

• Conferral of powers to investigate, compel testimony, etc.

• Conferral of powers to prescribe fees, exempt persons from requirements, delegate

duties, or sub-delegate regulation-making powers

•

Incorporation of other documents by reference

Regulations

• Qualifications, standards, tests and educational requirements for registration and

issuance of licenses and permits

• Procedures for registration and licensing, including registration processes and

licensing of labour mobility applicants and internationally trained/educated

professionals

• Codes of ethics**

• Practice standards***

• Administrative procedures for review, investigation and disposition of complaints,

hearings and reviews of registration decisions

• Categories of membership and the rights, privileges and obligations attached to each

• Requirements respecting conflict of interest

• Minimum requirements in liability protection

• Advertising

• Registration of business associations, including eligibility and requirements

• Requirements in relation to holding special meetings

• Notice and service requirements in respect to documents to and from the governing

body

By-laws

• The number, terms of office and remuneration* of board members and officers

•

Procedures for the appointment or election of officers

• Fees for registration and licensing*

• Rules for governing the council/association

• Rules for calling and conducting meetings

•

Procedures for holding meetings

*Arguably, these items should be subject to government review because they have significant implications for the

public and individual members. However, they are typically dealt with in by-laws so they can be updated more

easily.

** Codes of conduct are sometimes incorporated by reference. It is recommended, however, that documents only be

incorporated by reference when they are readily accessible to the public (e.g. available on-line free of charge).

*** Where practice standards require frequent updating, it may make sense to allows professions to adopt them by

way of by-laws, in which case the legislation should include a requirement that standards be made publicly available

(e.g. through web publication) and that members of the profession be notified of the changes in a timely way.

Complaint investigation and discipline

The way a regulatory body deals with complaints from the public about the actions of its

members is the litmus test of self-regulation. The complaints process must be fair and

participatory for complainants while respecting members’ rights to procedural fairness and

natural justice.

The legislation should establish the process for laying a complaint, the regulatory body’s powers

with respect to investigating and resolving complaints, and any mechanisms for appeal. In

crafting the process, it is important to balance the primary purpose of professional regulation

(that is, to protect the public) against the public’s interest in access to affordable service,

anticipated costs to government, and members’ rights to procedural fairness and natural justice as

well as protections afforded by the Canadian Charter of Rights and Freedoms.

Procedural fairness, natural justice and Charter rights are not fixed standards, but vary

depending on the stage of the complaint process, the potential prejudice to the professional and

the risk to the public. The more significant the potential impacts on members, the higher the

standard. Because these are legal concepts, complaint investigation and disciplinary processes

should be developed in consultation with Department of Justice solicitors, legal counsel for the

profession and the Office of Legislative Counsel, and take into account the specific risks and

circumstances of each profession.

There are differences amongst professions and the risks they pose so the powers required to

investigate and discipline members may differ as well. Typically, the most intrusive powers of

investigation and discipline will only be conferred where the risks associated with misconduct

are most serious.

Stephen Owen, Q.C. Professionalism in the Public Interest. 1991 Annual Report of the Ombudsman on British Columbia.

For example, bodies should only be empowered to direct members to undergo physical and

psychological examinations when less intrusive means of avoiding misconduct are clearly

insufficient and failure to provide such powers would put clients or patients at risk of substantial

physical or emotional harm. Where such powers of investigations are justified, they should be

specifically conferred by the legislation and the legislation should provide for appropriate

procedural safeguards.

At a minimum, legislation should require that members receive notice of any allegations made

against them and be provided with an opportunity to respond before an unbiased decision-maker.

The table below highlights some key issues respecting complaints investigation and discipline

that need to be addressed when drafting legislation.

Issues respecting complaints investigation and discipline

Issues

Commentary

Filing a complaint

• Who is permitted to initiate a

complaint – directly affected

parties, third parties, and/or the

regulatory body?

• What formal requirements must be

met to initiate a complaint?

• Are complaints against former

members permitted?

Many statutes require complaints to

be in writing or some other

permanent form. They should specify

to whom complaints must be

submitted and any time limits that

apply.

In general, a governing body should

have limited powers to initiate

investigations in circumstances

where there is no evidence of

misconduct.

Complaint

investigation

• Who is responsible for

investigating complaints?

• Are investigations a one or two-

step process?

• How is an investigation committee

appointed and composed?

• What notice requirements apply in

respect to an investigation?

• What powers does the investigator

have?

• What rights does the member being

investigated have?

• What timelines apply in respect to

an investigation and decision

making?

• What sorts of orders may an

investigator issue?

In establishing investigatory powers

and procedures, the level of intrusion

and potential prejudice to members

and the public’s interest in ensuring

complaints are appropriately

investigated should be taken into

account.

The two-step process involves staff

completing a preliminary

investigation to determine whether a

full investigation should be

undertaken or the matter can be

resolved informally.

Generally, investigation committees

should include one or more public

representatives.

• What authority/duty will an

investigator have to refer matters to

a hearing committee or disciplinary

panel?

• What rights does a complainant

have?

• Does the complainant have a right

to request a review by an

independent review committee?

• Are the results of investigations

communicated? If so, how?

Members must be advised of

complaints against them and

provided with reasonable

opportunities to respond.

Investigators should be given only

those powers required to investigate

complaints. Typically, statutes

provide them with powers to

interview individuals with relevant

knowledge, enter certain types of

buildings and require documents to

be produced. In addition, most allow

investigators to seek court orders to

seize documents and objects and

require documents to be produced.

The use of more intrusive powers

(e.g. the power to force members to

undergo medical examinations)

should be limited to those

circumstances where there is a

significant risk to clients/patients that

cannot be addressed through less

intrusive means.

There is a trend towards publishing

the results of complaints.

Alternate dispute

resolution

• Do investigators have the authority

to resolve/settle complaints using

alternative dispute resolution

mechanisms (ADR)?

• If so, in what circumstances is

ADR/settlement available?

• Is a disciplinary or other committee

required to approve the resolution

or settlement?

• Must the resolution or settlement

be made public?

Informal resolutions should be

documented to ensure complainants

and members are fairly and equitably

treated.

Publication of a resolution or

settlement contributes to ensuring

transparency and accountability of

the profession. It is common for a

resolution/settlement to be made

public in the same way decisions

issued by investigation or

disciplinary committees are

published.

Interim

suspensions/restrictions

(prior to full

• Who may order interim

suspensions or restrictions?

• What test must be met for issuing

Generally, interim suspensions and

restrictions should only be permitted

when there is an imminent and

investigation or review

by a hearing committee

or disciplinary panel)

interim suspensions or restrictions?

• What notice requirements and

other procedural safeguards apply

when an interim suspension or

restriction is being considered?

• What time limits apply in respect

to interim suspensions or

restrictions?

• Must notices of interim suspension

or restrictions be published?

significant risk to the public that

cannot be addressed by other means.

Disciplinary

proceedings

• How is the disciplinary panel or

hearing committee appointed and

composed?

• What notice requirements apply in

respect to hearings, including

disclosure of evidence to parties?

• What procedural rights do

members have?

• Are hearings open to the public?

• What time limits apply in respect

to procedural matters and

resolution?

• What sanctions are available at the

conclusion of a hearing?

• Does the disciplinary panel or

hearing committee have authority

to issue or recommend sanctions or

must it make recommendations to

another body that imposes

sanctions?

• What requirements apply with

respect to rendering decisions?

• Are decisions published?

• Can publication be banned? If so,

in what circumstances?

• What impact does criminal

conviction have on disciplinary

proceedings?

• What are the rights and roles of

complainants in hearings?

• What authority does the panel or

committee have to issue penalties

and recover costs associated with

hearings?

Professional disciplinary bodies are

subject to the principles of

fundamental justice, which require an

unbiased and disinterested

adjudicator, appropriate notice of

allegations, an open and fair hearing,

written reasons, and appropriate

sanctions.

Some courts have concluded there is

a Charter obligation to hold open

hearings unless there is a compelling

reason to do otherwise.

To ensure transparency and

accountability, at least one-third of a

disciplinary body’s members should

be public representatives. Individuals

who participate in an investigation

should be prohibited from being

members of the disciplinary body

hearing the matter.

There is a trend towards making the

results of disciplinary proceedings

public for an appropriate period of

time, in order to ensure transparency

and accountability of the professions.

However, it is important to balance

the public interest in ensuring ready

access to the information with the

risk of unreasonable damage to a

member’s reputation.

Many statutes allow disciplinary

bodies to award costs against

members who are successfully

prosecuted. In NS, courts have

indicated disciplinary bodies should

avoid awarding costs that would in

effect deny members a fair

opportunity to dispute allegations

against them.

Appeals

• Who may appeal a disciplinary

decision?

• What body hears appeals?

• On what basis may an appeal be

brought?

• What are the timelines for filing an

appeal?

• Can a decision be stayed pending

appeal? If so, in what

circumstances?

In establishing an appeal process, it is

important to take the skills, resources

and experience of the particular

profession into account. In general,

disciplinary decisions should be

appealable to the courts on errors of

both fact and law unless the

profession has sufficient resources

and experience to justify limiting

members’ rights of appeal.

Offences and enforcement

The Department of Justice generally recommends that penalties be addressed in some detail in

legislation. In particular, the legislation should establish the mental element of any offence,

specify enforcement options and penalties available, and establish applicable limitation periods.

If directors and officers of corporations are to bear personal responsibility for the actions of

corporations, that too, should be spelled out.

The 2013 “Guide to Legislation and Legislative Process in British Columbia,” provides the

following additional guidance: If sanctions are to be included, the rule of law requires that the

legislation be capable of being enforced in practice and not be written in the expectation that it

will be enforced only in limited circumstances which are not described in the legislation (that is,

as a matter of discretion). Provisions establishing penal sanctions should be reviewed to ensure

they will be effective in obtaining compliance, are supported by effective enforcement

mechanisms (such as inspection and search powers), are appropriate to the seriousness of the

non-compliance, and are flexible enough to allow fair treatment of accused people.

In addition, it is recommended the following principles be applied when drafting provisions

related to offences and enforcement:

• Offences involving prosecution through the courts should be reserved for the most

serious infractions such as practicing without a license and fraudulent misrepresentation;

• Penalties associated with offences should be proportionate to the seriousness of the risk

to the public. Imprisonment should be reserved for situations in which infractions raise

serious risks of physical, psychological and/or economic harm to individuals;

• Other infractions (e.g. professional misconduct) should be dealt with through the

association and/or college's disciplinary procedures to minimize the impact on public

resources and reinforce the authority of the self-regulated profession; and

• In determining the allocation of fines payable upon conviction of an offence (as opposed

to at the conclusion of a disciplinary proceeding), costs incurred by the Province as well

as those incurred by the profession should be taken into account.

The table below highlights issues respecting offences and enforcement that need to be addressed

in the course of preparing drafting instructions.

Issues respecting offences and enforcement

Issues

Commentary

Should specific violations be identified as

offences?

Identifying specific violations as offences in an act

provides clarity and serves as a “visible” deterrent.

Should fines be specified in the Act?

Doing so provides clarity.

How much should the maximum fine be for each

offence?

In determining the continuum of appropriate fines,

consider potential for harm to the public, profession,

members and clients; gravity/ seriousness of the

offence/proportionality; reasonable/adequate

deterrence; accountability; and public interest.

Should the maximum fine increase for subsequent

offences?

This could be considered based on disregard for the

initial penalty and continuing culpability.

Should imprisonment be available as a penalty?

Imprisonment should be reserved for those offences

that pose major risks of physical, psychological or

economic harm to individuals.

What is the time limit for commencing a

prosecution?

Regulatory acts often have deadlines, which provide

certainty. Generally, acts require that prosecutions

commence within two years of the date of the alleged

offence.

Who lays the information?

The act should specify who is empowered to lay an

information. Generally, informations can only be laid

by specific members of the profession’s governing

body and are prosecuted privately.

If there is a fine imposed, who gets the money?

Fine proceeds may be payable to the Province or the

profession, but a balanced approach in which

proceeds are shared as determined by the court may

also be considered.

If an offence continues for more than one day, is

each day that it continues a separate offence?

This must be specified if that is the intention.

Should the legislation shift the onus of proof for

any offence (e.g. in a prosecution for practicing

without a license, shifting the onus on the accused

to prove they have a license)?

For more serious offences or where the accused faces

potential imprisonment, a reverse onus provision

could be held to be unconstitutional.

Should the Act specify the provisions of the

Summary Proceedings Act apply?

There is no need to do so since the Act always

applies.

Licensing business organizations

Traditionally, self-regulated professions licensed and regulated individual professionals and not

companies, limited liability partnerships or other business organizations. The underlying

assumption was that professionals should be held personally liable for the advice and services

they provide. In addition, it was recognized that regulating business organizations is often more

complex than regulating individuals.

In recent years, many jurisdictions have enacted or amended legislation to authorize some

professions to license/register the business organizations through which individual professionals

provide their services. Typically, that legislation also creates mechanisms designed to prevent

individual professionals from using business organizations to avoid personal responsibility and

liability. The mechanisms vary but in each case their primary purpose is protection of the public.

When a profession requests that legislation be enacted or amended to include provisions that

would enable regulated activity to be undertaken through business organizations, the following

should be considered:

• Protection of the public and the public interest is the primary goal of self-regulation. Not

all circumstances warrant enabling professional practice through a business organization

so the benefits to professionals should be weighed against the risks to the public in each

case;

• There should be demonstrated demand within the profession, which is less likely in cases

where most members are employed by institutions;

• The profession should be willing and able to fulfill its oversight responsibilities with

respect to business organizations. In general, new professions should only be permitted to

have the resources and maturity to regulate business organizations effectively;

• Proposed legislation should incorporate provisions designed to protect the public and

maintain the individual responsibility and liability of the regulated professional; and

• The use of corporations or other business organizations should only be permitted in

concert with mechanisms to ensure professionals continue to be held personally liable for

the advice and services they provide. Such mechanisms may include:

- Requiring that the board of directors to be controlled by licensed individuals or,

where appropriate, that all members of boards be licensed individuals;

- Restricting board membership to licensed individuals;

- Requiring that a majority of shares be legally and beneficially owned by one or

more licensed individuals;

- Requiring that those who provide services through a corporation be licensed, and

that the corporation also be registered, licensed or permitted;

- Restricting licenses to individual members but permitting corporations to practice

under the authority of individual licenses;

- Requiring that licensing structures ensure responsibility for professional activities

remains with the licensed individuals;

- Extending disciplinary powers so that they apply equally to licensed individuals

and business organizations; or

- Restricting or requiring approval by the regulatory body of corporate names.

Departments should seek the advice of their Department of Justice solicitors regarding which

mechanisms are most appropriate in each case.

Other resources

In addition to the resources contained in this guide, departments may wish to consult with the

Executive Council Office (cabinet advisors), the Advisory Committee on Self-regulation, and the

Fair Registration Practices Act Review Office.

The Council on Licensure, Enforcement and Regulation (http://clearhq.org) provides various

resources and training that may be of assistance as well.

Appendix A: Fact Sheet for Proponents: Proposals respecting

Self-regulation in Nova Scotia

Introduction

Treasury and Policy Board approved a new Policy respecting Self-regulated Professions on

January 25, 2017. The objectives of the policy are to ensure the Board receives complete,

accurate and relevant information upon which to make decisions respecting self-regulated

professions and to improve the quality and consistency of submissions requesting new or

amended legislation. To that end, the policy establishes tests for determining when legislative

proposals respecting self-regulated profession will be approved and requires departments to

conduct a thorough examination of all of such proposals before they are submitted to Executive

Council for consideration. (The Policy may be viewed online at the Executive Council website.)

Professions do not have a “right” to self-regulate. Self-regulation is a privilege that is only

granted when government is satisfied that a profession has the capacity and commitment to

regulate itself in the best interests of the public, rather than in its own best interests. The

powers granted to a self-regulated profession should only be exercised when and to the extent

necessary to protect the public from real and substantial risks.

What self-regulation involves

The powers and duties associated with self-regulation should never be assumed lightly. The

resources required to carry out the responsibilities of a self-regulated profession effectively are

considerable. By definition, it is the profession – not government – that bears responsibility for

establishing and enforcing professional rules and standards, and individual members who bear

the costs of self-regulation through the payment of membership fees.

Specific responsibilities of a self-regulated profession include:

• governing and managing the body charged with overseeing the profession;

• setting standards and requirements to be met by those wishing to enter the profession;

• setting standards of practice for members of the profession;

• making and enforcing rules with respect to complaints investigation and discipline; and

• prosecuting offences under its legislation.

Proposing new or amended legislation

Legislation is usually required to create a new self-regulated profession or amend the powers

and responsibilities of an existing profession.

New legislation: The first step in proposing new legislation is to complete the questionnaire

attached as Appendix A, “Preliminary questionnaire respecting proposed self-regulation of a

profession in Nova Scotia”. Health care professions should also provide information regarding

the factors set out in Appendix B. “Information required by the Department of Health and

Wellness”.

The next step is to forward a written proposal to the appropriate Minister. (For example,

health care providers should direct proposals to the Minister of Health and Wellness.) The

proposal should include at least the following:

- a letter requesting that the government enact new legislation respecting the profession;

- a brief description of the proposed legislation; and

- a completed questionnaire (Appendix A) and, if applicable, the additional information

required by the Department of Health and Wellness (Appendix B).

Please note that proponents are discouraged from including draft legislation with their

proposals. In Nova Scotia, legislation is drafted by the Office of Legislative Counsel and only

after a formal request from the Minister has been approved by Executive Council.

Amendments to existing legislation: The first step in proposing amendments to existing

legislation is to complete the questionnaire attached as Appendix C, “Preliminary questionnaire

respecting proposed amendments to legislation governing a self-regulated profession in Nova

Scotia”.

The next step is to forward a written proposal to the Minister responsible for the legislation.

The proposal should include at least the following:

- a letter requesting that the government amend legislation governing a self-regulated

profession;

- a brief description of the proposed amendments; and

- a completed questionnaire (Appendix C).

Please note that proponents are discouraged from including draft amendments with their

proposals. In Nova Scotia, all amendments are drafted by the Office of Legislative Counsel and

only after a formal request from the Minister has been approved by Executive Council.

Departmental Review of Proposal and Decision Making

New Legislation: When a proposal for new legislation is received, departmental staff undertake

a preliminary analysis to confirm that:

• There are substantial risks to clients, patients and/or the public that are not remote and

cannot be addressed more efficiently and effectively through means other than self-

regulation; and

• The profession has or can be expected to develop the capacity to self-regulate.

Based on the preliminary analysis, staff may recommend that the proposal proceed no further

or, alternatively, ask the proponent to provide further information to enable them to do more

in-depth analysis to determine whether the proposal complies with directives set out in the

policy.

Once staff are satisfied that the proposal complies with those directives and should be

recommended, staff prepare a formal request for legislation, which must be approved by

Executive Council before legislation is drafted.

Amendments to existing legislation: When a proposal for amendments is received,

departmental staff undertake a preliminary analysis to determine whether the proposed

amendments address pressing or substantial issues, and will enhance the profession’s ability to

regulate itself in the public interest.

Based on the preliminary analysis, staff may recommend that the proposed amendments

proceed no further or, alternatively, ask the proponent to provide further information to

enable them to do more in-depth analysis to determine whether the proposed amendments

comply with directives set out in the policy.

In conducting their analysis, staff will normally take a narrow approach that focusses on the

specific amendments requested by the profession. However, they may recommend a more

fulsome review of the entire statute after considering the history of the existing legislation, the

extent to which the existing legislation is consistent with government’s current policy

objectives, the past performance of the profession and the significance and urgency of the

issues addressed by the amendments.

Please note that, although departments review proposals and make recommendations in

respect to them, only Executive Council (Cabinet) has the authority to decide whether

legislation respecting a self-regulated profession will be prepared and introduced in the

House of Assembly.

Appendix A: Preliminary questionnaire respecting proposed self-regulation of a profession in

Nova Scotia

Before engaging in a formal analysis of any proposal for self-regulation, government requires certain

information. This questionnaire will assist you in providing that information. In general, the Province of

Nova Scotia only considers granting the powers of self-regulation when an evidence-based case can be

made that it is in the public interest to do so.

Section I: Tell us About the Profession Proposing Self-Regulation

Provide the name and description of the profession, including the general services it provides.

What are the educational requirements to practice the profession?

If no specific education is required, describe the types of education attained by those currently practicing the

profession.

Is the proposal for self-regulation supported by a substantial majority of the profession’s practitioners?

If not, why not? Please describe the method used to consult with practitioners, including with those who are

members of other organizations and who are not members of any organization.

Attach a copy of any standards being proposed for the profession.

Standards should include at least a description of the profession’s scope of practice, the competencies required

to practice safely (including who developed them) and any programs that provide the education & training

needed to ensure individuals meet the standards.

Section II: Tell us About the Organization Proposing Self-Regulation

Name of the organization.

Describe the organization including its purpose, membership and governance structure. What percentage of

those practicing the profession does the organization represent?

What other organizations (if any) exist to represent those practicing the profession?

If other organizations exist, have they been consulted and what was the outcome of that consultation?

Section III: Risks to the Public

What are the specific risks to the public that would be addressed by self-regulation?

The primary reason for any decision to enable self-regulation is to mitigate risks to the health and safety of the

public. The applicant should demonstrate that there is a substantial risk to the public associated with the

delivery of the profession’s services and that self-regulation is the most efficient and effective means of

mitigating that risk. Complete the table below and fully describe each risk to the public, how self-regulation

would mitigate the risk and any other options for mitigating the risk other than self-regulation (for example,

voluntary codes or public education).

Describe the risks to the public if this profession

is not self-regulated.

How would self-regulation

mitigate this risk ?

Other options

considered by the

organization for

addressing the risk

Who are the primary clients of this profession?

This may include individuals and/or organizations

What percentage of practitioners deliver services independently and what percentage work with or under the

supervision of others (including other regulated professions)?

What options currently exist for clients to address concerns about goods or services provided by the

profession’s practitioners?

For example, are there voluntary investigative or disciplinary processes for the profession?

What complaints, if any, has your organization received from clients in the last 5 years?

Provide specific examples of complaints received which could have been addressed through self-regulation.

Describe how public safety is at risk because the profession is not regulated.

Include specific examples of incidents in which a lack of self-regulation resulted in harm to members of the

public. Include statistics on the number and types of complaints received from the public.

How will the public and those receiving services from the profession benefit from self-regulation?

Briefly summarize any research or other evidence that supports self-regulation of the profession.

Attach copies of any documents referenced.

Section IV: Competition, Trade and Regulation in Other Jurisdictions

Do national or international standards for education and/or practice of the profession already exist?

If so, please attach a description of those standards and explain how they align with the standards being

proposed.

Is the profession self-regulated in any other province or U.S. state or other international jurisdiction?

If so, please provide specific examples and compare the standards/requirements in those jurisdictions with the

ones being proposed for Nova Scotia.

What percentage of the profession’s current practitioners will be prevented from practicing if the proposal is

accepted by government?

Please explain why they would be prevented from practicing the profession.

Describe any opportunities for bridging that are to be provided to current practitioners who could not satisfy

the minimum qualifications to be registered or licensed under the proposed standards?

Does the scope of practice for this profession overlap with that of any other profession?

If so, describe how such overlaps would be addressed? Also describe how self-regulation of the profession would

affect people working in related professions.

Appendix B: Information required by the Department of Health and Wellness

1) The extent to which the practice of the health profession may involve a risk of physical,

mental, or emotional harm to the health, safety, or well-being of the public, having regard to:

(a) the services performed by practitioners of the health profession;

(b) the technology, including instruments and materials, used by the

practitioners;

practitioners.

2) The degree to which the health profession is:

(a) practiced under the supervision of another person who is qualified to practice

as a member of a different health profession, or

(b) practiced in a currently regulated environment.

3) The extent to which the health profession has demonstrated that there is a public interest in

ensuring the availability of regulated services provided by the health profession.

4) The extent to which the services of the health profession provide a recognized and

demonstrated benefit to the health, safety, and well-being of the public.

5) The extent to which there exists a body of knowledge that forms the basis of standards of

practice for the health discipline.

6) Whether members of the profession are rewarded a certificate or degree from a recognized

post-secondary educational institution.

7) Whether it is important that continuing competence of the practitioner be monitored.

8) The extent to which there exists within the health profession recognized leadership which

has expressed commitment to regulate the profession in the public interest.

9) The likelihood that a college established under legislation would be capable of carrying out

the duties imposed by the Act, having regard to factors which may affect the viable operation

of the college.

10) Whether regulation would be likely to limit the availability of services contrary to the public

interest.

Appendix C: Preliminary questionnaire respecting proposed amendments to legislation

governing a self-regulated profession in Nova Scotia

1) Statute to be amended

2) Name of individual or organization proposing the amendments

3) Briefly describe the purpose of the proposed amendments

4) Why are the amendments being proposed at this time?

5) Is it anticipated that further amendments will be proposed in the next 2-3 years?

6) What risks would be addressed by the amendments?

7) How would the amendments contribute to improving regulation of the profession in the

public interest?

8) Would the amendments result in additional costs for members or potential members of the

profession, clients or the public? If so, please quantify the expected costs.

9) Would the amendments affect access to service in some areas of the province?

10) Would the amendments make it more difficult for practitioners to gain entry to the profession

upon relocating to Nova Scotia from other jurisdictions?

11) Have members of the profession been consulted in respect to the proposed amendments? If

so, please describe the consultation undertaken and any feedback obtained.

12) Would other professions or other stakeholders be affected by the amendments? If so, have

they been consulted? If so, please described the consultation undertaken and any feedback

obtained.

Appendix B: Engagement

Why Engage?

Proper engagement enables better planning for better outcomes in relation to any regulatory

regime because engagement:

• Enables an understanding of the attitudes and positions of those affected;

• Contributes to ensuring alternatives have been considered in developing

recommendations, options or positions;

• Confirms the evidence, information and other data used to form conclusions;

• Helps to identify barriers or issues relating to implementation;

• Helps to uncover unexpected consequences; and

• Improves or maintains relationships with important stakeholders.

(Adapted from The Australian Government Guide to Regulation, Government of Australia, 2014)

What is engagement?

Engagement involves exchanging communications with an audience, usually thoughtfully

selected, for a particular purpose. It can and should take different forms depending on the

reasons for the engagement and the outcomes sought. Engagement with stakeholders or the

public includes a variety of practices that can be conceptualized as a continuum of engagement.

One of the best known representations of that continuum has been developed by the International

Association of Public Participation (IAP2). Called the IAP2’s Spectrum of Public Participation,

it illustrates an increasing level of stakeholder (or public) impact on decisions which result from

the form of engagement chosen. The form of engagement corresponds to the participation

required to accomplish the goals of the engagement, including how the information and opinions

voiced and received will be treated and used.

The Spectrum is a tool for determining what form of engagement is most appropriate in a given

case and for planning the engagement. In the context of dealing with requests for self-regulation,

the preferred options will usually be to “consult” or “involve” stakeholders while ensuring

government retains the ultimate power to make decisions.

Engagement

practice

Inform

Consult

Involve

Collaborate

Empower

Participation

Goal

To provide

participants with

balanced and

objective

information to

assist them

To obtain

feedback on

analysis,

alternatives or

decisions

To work directly

throughout the

process to

ensure that

concerns and

aspirations are

To partner with

participants in

each aspect of the

decision

including the

development of

To place final

decision

making into

the hands of

participants

understanding the

problem or issues,

alternative

opportunities or

solutions

consistently

understood and

considered

alternatives and

identification of

the preferred

solution

Feedback to

participants

We will keep you

informed

We will keep

you informed,

listen to and

acknowledge

concerns and

aspirations, and

provide

feedback on

how

participants’

input influenced

the decision or

way forward

We will ensure

that concerns

and aspirations

are directly

reflected in the

alternatives

developed and

provide

feedback on

how the input

influenced the

decision

We will look to

participants for

direct advice on

formulating

solutions and

incorporate the

advice and

recommendations

into the decision

to the maximum

extent possible

We will

implement

what you

decide

Sample

techniques

Fact sheets,

websites, open

houses

Public

comments, focus

groups, surveys,

public meetings

Workshops,

deliberate

polling

Advisory

committees,

consensus

building,

participatory

decision making

Participant

juries, ballots,

delegated

decision

making

(adapted from IAP2’s Spectrum of Public Participation, 2007)

Principles of Engagement

Regardless of the reach, extent or complexity of the planned engagement, there are best practice

principles for engaging stakeholders. These principles include:

• Openness – Be open about the purpose of the engagement with stakeholders, regardless

of the sophistication of the techniques used; articulate clearly the goals or purpose of

engaging with stakeholders.

• Transparency – State the reasons for engaging with stakeholders at this time; clearly

describe the entire engagement process; appropriately share expert information and data

to inform the debate or discussion.

• Accountability – Communicate the uses to which information or input will be put, the

role participants are to play in regards to informing decisions and what will happen to

their input; specify how and when participants will receive feedback on their input and its

subsequent use.

• Fostering understanding – Structure the engagement process to enable learning, the

sharing of perspectives and opinions.

• Social and economic inclusiveness – Be sure all engagement techniques and events are

barrier free; use techniques that are accessible to desired participants.

Who should be engaged?

In many cases, there will already be well-established means of communicating with the

stakeholders who will be most affected. Typically, engagement in respect to establishing a new

self-regulating profession or altering the structure or governance of one would start with those

stakeholders.

Problems will arise, however, if the target group for the engagement is too limited in size or

scope. It is essential to consider not only those directly involved, but others who may be

indirectly affected, including in some cases the broader public. Who might be significantly

affected? Who should be entitled to have a voice during the initial engagement? Should the

targeted audience be different in subsequent consultations? Rather than assume limited impact, it

is best practice to obtain input from the broad stakeholder groups.

It should also be borne in mind that a government department or office may have a legislated or

other interest in the development of a self-regulating body and is therefore an important potential

stakeholder.

The participation of these departments or offices in an engagement or its planning can be critical

in terms of providing information or other insights. It is also possible that expertise or other

forms of government assistance could be available from these departments or offices in planning

and conducting an engagement.

When should engagement happen?

In general, engagement should not be considered a one-time event. In the case of developing a

self-regulating profession, the initial contact is usually with the individuals, stakeholders, and

allied professionals who would be directly affected. However, given the potential complexities,

issues and range of opinions, engagement should be a well thought out process that extends until

a way forward is recognized and accepted. This can mean different forms of engagement at

different stages of developing and implementing the self-governing body, or with different

groups of affected stakeholders.

Planning to engage

Good engagement is not just about being polite and courteous. Stakeholders need to know their

opinions count on matters that affect them. Pre-determining the engagement process is essential

to gaining useful input and maintaining stakeholder interest, participation and good will. Once

the goals and purposes of engagement have been clarified, a plan should be developed in

advance of reaching out to stakeholders.

Because engagements with stakeholders can take many forms, there is no single way to create a

plan. Knowledge of the stakeholders’ awareness of the issues, information already obtained or

received, and experience with stakeholder groups will help shape an appropriate engagement

plan.

While engagements vary, sound engagement plans typically include the following elements,

though they need not be addressed in a particular order:

1. Alignment: Ensure the rational for engaging with stakeholders is legitimate, the intent of

the process is clear, and alignment with all legislated or regulatory requirements, or

government department/office strategies, policies and principles.

2. Decisions: Define the scope of the decision to be made or frame the discussion to be

held.

3. Participants: Identify the participants and their issues (if possible) and use the

information to refine the scope of the discussion if necessary.

4. Design: Identify the details and logistics for the engagement exercise.

5. Engage: Depending on the purpose of the engagement, communicate broadly with

stakeholders using a variety of tools and opportunities, or, create a two-way dialogue for

deeper discussions and input.

6. Analyze and decide: Create a process to sort, theme, and distill information gathered

through the engagement process. Validate the process with stakeholders to ensure

objectivity. Decisions should reflect the information gathered through the engagement

process.

7. Report: Communicate the discussion results, the rational for decisions made, or other

findings to stakeholders using established methods from the process design.

8. Evaluate: Evaluate the process and outcomes of the engagement process as well as its

results.

(Adapted from the Patient and Public Engagement Model in Involving Patients and Citizens in Decision Making: A

Guide to Effective Engagement, Capital Health, Halifax, NS.)

Other Resources

International Association for Public Participation (IAP2), www.iap2.org

Capital Health, Nova Scotia Health Authority, Central Zone www.cdha.nshealth.ca/involving-

patients-citizens

Australian Government, Guide to Regulation, www.cuttingredtape.gov.au