October 29, 2012

Increasing scopes of practice: professional interest or public interest?

Administrative Law
Professional Regulation

Our last two blog releases set out a short quiz on the public interest (here) and our views on the answers to that quiz (here). The ability to distinguish between the public interest and the professional interest is essential for a professional regulatory body to understand and act within its own mandate and jurisdiction. However, this distinction is not always easy to make. For this reason, defining what falls within the public interest can be a hotly debated topic, including among our readers.

As expected, we received quite a bit of feedback with respect to one issue in particular: whether it is within a professional regulatory body’s mandate to advocate for an expansion of the profession’s scope of practice. In our response to this question, we stated that it could fall within either the public interest or the profession’s interest, depending on the circumstances. In this entry, we will explore the differing interests in more detail.

What is the profession’s interest in increasing its scope of practice?

Members of a profession will often have various reasons for which they might desire a broader scope of practice for their particular profession. A profession might, for example, want to be able to offer new treatments that fall within the expertise and knowledge base of that profession while remaining outside their legal scope of practice for the purpose of expanding the number and diversity of services they are able to offer to the public and the amount of business they receive. Relatively recently dentists in British Columbia received a revision to their scope of practice which allows them to now offer Botox treatments to the public, potentially providing them with increased business. This type of economic incentive for the profession will fall outside the mandate of a regulatory body serving the public interest. Similarly, a profession may wish to increase its scope of practice to compete with other professions that offer complementary services for reasons of economic gain by the members of that profession.

On the other hand, the profession will also be interested in ensuring that its members can offer all services that fall within their knowledge and abilities to best serve their clients and the public as well. The profession’s interest is not limited to economic benefits for the members of that profession, but this is an example of where the distinction between the profession’s interest and the public interest is clear.

Overall, a professional association or trade union will have few restrictions on its ability to lobby for changes to the profession’s scope of practice, as its activities are directed primarily by the interests expressed by its membership. Likewise a professional association and trade union will have few restrictions in challenging the interests of another profession in increasing its scope, as was the case of the BC Medical Association which opposed granting dentists the ability to provide Botox treatments.

What is the public’s interest in increasing the scope of practice of a profession?

The public interest in an expanded scope of practice for a profession will not be mutually exclusive from that of the profession’s interest. The ability of professionals to offer more services to the public  not only serves the interests of those professionals but it also serves the interest of the public in having more availability of certain services and more competition with respect to the number of professionals who are legally able to provide such services. In this way, the public interest may also be served by allowing dentists, for example, to provide Botox treatments. Due to the overlap between professional and public interests in such an increase to the profession’s scope of practice, however, it may be more prudent for a regulatory body to avoid lobbying for a particular position on an issue such as this and to leave such action as this to the professional association or trade union. If the regulatory body does take a position, it is important that its position be clearly rooted in the public interest.

When a scope of practice change is more clearly geared towards public safety, the propriety of a professional regulatory body advocating for change will more straightforward. For example, a profession may be seeking a greater exclusive scope of practice (also known as “reserved acts”) under the premise that certain activities ought to be provided by that profession alone for the protection of the public. Nevertheless, this too engages a delicate area of contention between the public interest in protection from substandard practice versus the public’s interest in having easy access to health care services and increased consumer choice and competition. For this reason, a regulatory body should still proceed with caution before advocating for a particular position with respect to the profession’s scope of practice.