We often receive inquiries about whether health professionals are bound by unwritten standards. These queries arise in such contexts as investigations and a need to articulate the standards which a respondent may have contravened, or complaint dispositions where the Health Professions Review Board (HPRB) asks what standards an Inquiry Committee applied when deciding a respondent met professional standards. Inquiries about unwritten standards are understandable where regulators are developing ever-expanding written standards. Unwritten standards remain, however, at the heart of professional regulation.
The Existence of Unwritten Standards: The Walsh case
Unwritten professional standards are not novel; they have a history as long as self-regulating professions, beginning with the training of English barristers and solicitors by Inns of Court (from the 14th and 15th centuries onward) and resulting shared customs and norms. But in Walsh v. Council for Licensed Practical Nurses, 2010 NLCA 11, (2010) 317 D.L.R. (4th) 152 (N.L.C.A.), the Newfoundland and Labrador Court of Appeal expressly considered unwritten standards of health professionals, as part of considering a nurse’s alleged misconduct for failing to report a client’s dissatisfaction with bathwater temperature. The tribunal found misconduct despite no explicit written rule requiring such reporting. The Court quashed the tribunal’s decision, emphasizing the need for professional standards to be either written or demonstrably part of the profession’s common understandings.
Chief Justice Green noted (at para. 41) that professional standards can arise from:
– a written code of conduct;
– evidence of common understandings within the profession as to what is expected of a reasonable professional in the circumstances under consideration; or
– by way of logical deduction from the fundamental values of the professional body itself.
As further noted in Walsh (at para 43), “standards must be known or ascertainable, or at least capable of being deduced, in advance. That can be accomplished either by the professional body exercising its rule-making authority to establish written standards of practice, or by reference to the ‘professional culture’ itself.” A hybrid situation may also arise, where a tribunal must decide how a statement of general principle translates into a specific standard of conduct in a concrete situation (at para. 44). A tribunal cannot, however, “decide on its own what the standard should be is that it would allow the tribunal effectively to legislate standards after the fact…” (at para. 43). A tribunal must “search for a source of standards external to itself” by looking to the common expectations of the profession.
Reaffirming Unwritten Standards: the Kherani case
The Alberta Court of Appeal recently revisited the Walsh principles in Kherani v. Alberta Dental Assn and College, 2025 ABCA 2. Dr. Kherani, a dentist, was found guilty of unprofessional conduct for deficiencies in treatment planning, diagnostic processes, patient management, and recordkeeping. She argued that she could not be sanctioned for failing to meet standards not explicitly stated in written documents. The Court rejected this argument. At paragraph 21, the Court explained:
“[21] However, while s 133 of the HPA outlines the formal process for adopting written Standards of Practice, it was not an error of law for the Tribunal to assess Dr Kherani’s conduct under standards not adopted pursuant to s 133. Professional standards can be developed either through the regulator establishing written standards or by referencing the common expectations of the profession: Walsh at para 43. In this case, Dr Kemp gave expert evidence on the common standards of practice for the profession. To effectively regulate the profession, there must be standards to which a professional can be held that go beyond the written standards of practice.Not every detail of being a professional can practically be reduced to writing. If the Standards of Practice adopted under s 133 are the only relevant standards, no professional could be found guilty of unprofessional conduct based on a lack of knowledge, skill, or judgment where written standards do not exist, an absurd conclusion not supported by the language of s 133.” (emphasis added)
The Alberta court confirmed that professional standards are not, and indeed cannot be, exclusively defined by written documents. Where written standards do not provide full guidance, regulatory bodies may rely on expert testimony to establish what the profession generally expects. The Kherani decision reinforces the principle from Walsh while affirming that unwritten standards, when anchored in recognized professional practices, can lawfully form the basis for findings of misconduct.
Practical Implications for Health Professionals
1. Unwritten Standards Still Matter: Professionals cannot rely solely on written standards to define acceptable practice. Courts have recognized the relevance of profession-wide understandings and fundamental principles.
2. Expert Evidence is Key: Regulatory bodies must, in discipline proceedings, support claims of unwritten standards with credible, expert testimony. (At a screening stage, however, where an Inquiry Committee must decide of a registrant may have contravened standards, members of the committee may consider information before them through the lens of their own expertise.)
3. Prepare for Evolving Standards: Professions change, and regulators may rely on new, unwritten norms that reflect evolving minimum standards of practice.
Conclusion
The Walsh and Kherani cases illustrate the ongoing role of unwritten standards in professional regulation. While such standards exist and can support findings of misconduct, they must reflect broadly accepted professional practices. Health professionals should remain aware of these implicit expectations while continuing to adhere to written guidelines.
Walsh v. Council for Licensed Practical Nurses, 2010 NLCA 11, (2010) 317 D.L.R. (4th) 152
Kherani v. Alberta Dental Assn and College, 2025 ABCA 2
Lisa C. Fong, KC and Michael Ng