One essential purpose of regulatory bodies is to ensure professionals are fit to practice their professions. Broadly defined, fitness to practice (or simply “fitness”) encompasses several constituent qualities, including education and training, mental and physical capacity, and “good character”. These requirements are often identified in enabling statutes which authorize regulatory bodies to set registration requirements. For example, s. 19(1) of the Health Professions Act authorizes every college under the HPA to establish registration requirements, including standards of academic or technical achievement, competencies or other qualifications, and good character. Statutes can also reference “fitness” more directly. For example, the Teaching Profession Act requires the B.C. College of Teachers to ensure every member is “of good moral character and is otherwise fit and proper to be granted a certificate of qualification” (s.25).
Good character: The concepts of good character and fitness are closely related concepts. Although “good character” is an amorphous concept, it has particular significance for professionals entrusted to serve others according to ethical requirements. The legal profession accordingly accepts “good character” to include at least “the moral fibre to do that which is right, no matter how uncomfortable the doing may be and not to do that which is wrong no matter what the consequences may be to oneself.” Mary Southin, Q.C., “What is Good Character?” 35 The Advocate 129. Ultimately, a person who by virtue of his or her character cannot be trusted to exercise professional power responsibly may be “unfit” for membership in that profession.
The lack of good character can be illustrated in an Ontario law society case of an applicant, convicted 12 years previous for sexual abuse of children, who was refused membership for his failing to prove rehabilitation. The panel perceived the applicant as, “a man at once intelligent, articulate, manipulative and prone to intellectual rationalization of his past misconduct. The Committee is not satisfied on the balance of probabilities that this applicant has truly reflected upon and altered the moral code and structure of beliefs which led or allowed him to act out his predatory assaults upon the children.” See Re P. (D.M.), [1989] O.J. No. 1574 (L.S.U.C.) [September 8, 1989].
Capability: Although fitness requires good character, not everyone with good character is fit to practice. Fitness encompasses more than good character. For example, an applicant may be prevented from practicing by reason of a mental or physical impairment. Where a restriction relates to a disability, however, human rights law (which in BC generally prevails even over other statutes) will require any restriction to be reasonably necessary. Indeed, any measure restricting membership on the basis of physical or mental disability is prima facie discriminatory, and the regulator must justify a measure as reasonably necessary to ensuring reasonable, rather than absolute, public safety.
A professional regulatory body that screens applicants for mental conditions that may constitute practice impairments must, for example, carefully tailor the method to avoid unfairly prejudicing persons with mental disabilities. Gichuru v. The Law Society of British Columbia, 2009 BCHRT 360. In Gichuru, the B.C. Human Rights Tribunal found a question on an application form requiring applicants to disclose instances of prior treatment for particular mental illnesses was not reasonably necessary for the purpose of ensuring registrant fitness to a reasonable standard of safety. Specifically, the Tribunal found the application form was not appropriately tailored to its function, as it unfairly targeted some forms of disability and not others, and was overbroad by capturing all instances of illness, no matter how long in the past. The Law Society has since amended its application form in response to these criticisms. Next week, to explore the difficult issues of mental and physical fitness, we will explore whether, in our view, the amendments to the Law Society’s application form meet the Tribunal’s concerns or repeat them.