We recently came across an article on Slaw entitled, “Is It Time to Abolish (Or Reform) the Good Character Requirement?” (link) This piece asks if character assessments belong in modern professional regulation at all, pointing for example to expense and lack of predictive value. These are fair questions. But as legal counsel for regulators of health professions, we thought a counterpoint useful. Specifically, we wanted to articulate a few points about why the “good character” requirement still exists, and why it remains a useful tool in professional regulation.
First, to some extent, any question about eliminating “good character” is moot, at least in the field of health professions in BC. The newly-enacted Health Professions and Occupations Act, SBC 2022, c. 43 (“HPOA”), clearly confirms, under s. 38(b), that a regulator may only grant licensure to an applicant who, in addition to being fit to practice, “will practise the designated health profession in an ethical manner, having regard to the person’s entire disciplinary record, character, past conduct and other relevant factors.” In other words, the legislature has clearly mandated the concept for some time to come.
Second, the need for good character is not merely ornamental. It reflects the reality that good character matters, not because regulators are in the business of policing virtue, but because poor character can present concrete risks to patients, institutions, and the public.
Bad or poor character Is not necessarily vague, if it’s a proxy for specific risks: While “good character” is an open-ended concept, the traits that call it into question need not be mysterious. Various traits can be clearly inimical to professionalism in the health field.
1. Dishonesty and Deception: Falsifying credentials, forging documents, misrepresenting facts in an application, lying to regulators, or serious dishonesty in other contexts raises raises legitimate concerns about an applicant’s future honesty with patients, employers, colleagues, and regulators.
2. Disregard for the Law: A pattern of unlawful conduct, or an instance of serious unlawful conduct, may signal a deeper disregard for legal obligations and ethical limits.
3. Abuse of Trust or Power: Past misconduct involving abuse, exploitation, or coercion brings into question whether an applicant may be trusted with patient care. Health professionals are often placed in positions of deep trust and asymmetrical power.
4. Lack of Remorse or Insight: Sometimes the issue is not the conduct itself, but an applicant’s response to it. An applicant who cannot accept responsibility or demonstrate insight into why their behaviour may go to the heart of an applicant’s abilitiy to regulate themselves in accordance with ethics and practice standards.
5. Patterns of Irresponsibility or Recklessness: Similarly, an applicant that has demonstrated past patterns financial irresponsibility, or behaviour that places others at risk, may have implications for the applicant’s ability to oversee their patients’ safety.
6. Discriminatory or Harassing Behaviour: Under the HPOA, discrimination is now an express component of miscondct. An applicant’s past discriminatory conduct like racism, homophobia, or sexual harassment may warrant a regulator assessing the applicant about their biases and attitudes that may impair their ability to protect the public from discrimination, and to refrain from misconduct that now expressly includes discrimination prohibited by the Human Rights Code.
These are just some important characteristics that may be bound up in “good character”.
Criminality is also not a proxy for good character: Why not just assess criminal records or proven professional or educational misconduct? Any “bright-line” method of assessing character relies on some sort of finding by another institution, e.g., a criminal court, or an employer, or an educational institution. But a character issue may not lead to a conviction, or to any “formal” finding of wrongdoing. A person may act legally but still blatently exploit others. Further, a regulator relying on findings of illegality or misconduct by other institutions does not escape the burden of exercising judgment about what risks those findings disclose, or about the legitimacy of findings without hearings, such as by schools or employers.
In conclusion: The good character requirement may be vague, but that does not mean it is without purpose. If personal characteristics still matter, then regulators need authority to assess them. If regulators must assess character traits, they should be empowered to consider all the messy, convoluted, and nuanced facts relevant to whether an applicant is likely to practice in an ethical manner.
Lisa C. Fong, KC and Michael Ng