Governability

This edition of Standards in Focus highlights the Standards of Practice and Conduct that speak to governability.

Governability refers to “an ability to self-regulate and a willingness to accept the authority of the regulatory college, as well as an understanding of the importance of effective governance of the profession to protect the public.” ¹ Governability standards are in place to ensure that members of the profession are “regulatable” – that is, able to be regulated and willing to be bound by the rules of their profession. When a member of a profession demonstrates ungovernability, the member impedes the professional regulator from discharging its responsibility to protect the public. ²

Several of the Standards of Practice and Conduct ³ speak to professional expectations related to governability. Category I of the Standards is focused on professional accountability. These Standards underscore the fact that licensed practical nurses must conduct themselves as professionals and accept accountability for their practice and their conduct. Included within Category I are several statements that speak to the concept of governability. These are:

As an LPN, you must:

• Comply with legislation, regulations, professional standards, and employer policies and protocols relevant to the context of practice when making decisions. (Standard 3)
  
• Accept accountability and take responsibility for your own professional conduct, decisions, practice, and errors. (Standard 4)
  
• Demonstrate governability by cooperating with CLPNM processes affecting your registration and practice. (Standard 5)
  
• Conduct yourself in a manner that upholds the public’s trust in the profession.
  (Standard 6)

• Act honestly, transparently, respectfully, and with integrity in all professional interactions, including interactions with the regulator. (Standard 9)

The CLPNM recognizes that the vast majority of Manitoba’s LPNs are governable professionals who are willing to participate in processes that affect their licence, their authorization to practise, and their professional accountability.

Occasionally, the CLPNM encounters a registrant who is unwilling to do so. When that is the case, it raises questions about whether the individual can be counted on to generally conduct themselves according to the broader rules of their profession.

Why is governability important?

When members of a profession demonstrate governability, the public and the profession both benefit.  

The public expects that individuals who have been granted an exclusive right and privilege to practise a health profession are worthy of their trust. ⁴  When the public can see that members of a regulated profession are following a set of professional standards, the public can have confidence in the profession.

Public trust in a profession overall also contributes to trust in each individual member of the profession. In this way, your colleagues’ governability can contribute indirectly to the trust that your clients have in you. Conversely, if a member of your profession were to conduct themselves in a way that diminishes public trust, it could indirectly affect your clients’ confidence in you. Actions that shame one member of a profession can bring shame to the entire profession by extension. ⁵

Another way that your colleagues’ governability (or ungovernability) can affect you indirectly is through your registration fees. This is because fees paid by applicants and registrants are the CLPNM’s primary source of operating revenue. When other members of your profession cause CLPNM costs (e.g. legal fees) to escalate as a result of ungovernable behaviour, all members of the profession bear those costs indirectly.

Examples from Professional Regulation

Here are a few examples of how courts and discipline panels have addressed regulated professionals’ ungovernable behaviour.

• In 2016, a registrant of the College of Registered Nurses of Manitoba sought a stay of a disciplinary order revoking his registration, pending his appeal of the discipline decision. The stay of decision, pending appeal, would have granted the individual the ability to return to practice while the appeal case proceeded. The court declined to grant the stay, noting his previous ungovernable behaviour as a factor in the decision. ⁶
• In 2018, a former member of the massage therapy profession in Ontario applied to return to practice but was denied on the basis of his history of conduct.  He appealed the denial. The appeal board upheld the denial, noting among other reasons that the applicant had “not meaningfully demonstrated that he appreciates the nature of professional expectations and governability standards.” ⁷
• Also in 2018, the Discipline Committee of the College of Nurses of Ontario found a registrant to have committed professional misconduct when she failed to notify her regulatory college of criminal charges and convictions. The Discipline Committee commented that “the member’s failure to report any for the charges or the conviction demonstrates a disregard for her personal and professional integrity and speaks poorly of her ability to be governed by the College.” Her registration was revoked. ⁵
• In 2019, the British Columbia College of Nursing Professionals suspended the registration of a licensed practical nurse after she failed to respond to the regulator’s “repeated and numerous attempts to communicate with her regarding an ongoing investigation”. The registrant’s failure to engage with her regulator following a complaint regarding her conduct was noted by BCCNP to “raise serious concerns that she may not be governable.” ⁸

Governability and the Complaints Process

The cases outlined above are just a few of the many published decisions that highlight how governability, or a lack thereof, can factor into decisions in professional discipline and appeal cases. However, when there is a breach of professional standards, governability is also an important consideration at earlier stages in the complaint process when the regulator is deciding whether the case needs to be referred to a discipline hearing at all, or whether resolving the complaint by mutual agreement and with a focus on remediation is an appropriate alternative.

An important factor in determining whether a substantiated complaint will be referred for professional discipline or not is the degree to which the registrant demonstrates governability.  The resolution of a complaint by agreement may not be possible or effective if a registrant does not participate in the complaints process or build (through their participation) trust that they will abide by any mutual agreement that is reached. A complaint against two registrants regarding the same initial behaviour can have two very different outcomes when one demonstrates insight and governability and the other does not. The following hypothetical scenario illustrates this point.

Scenario

A member of the public, Erika Wilson, has submitted a complaint to the CLPNM regarding the practice and conduct of two licensed practical nurses, Joanne Garcia LPN and Aaron Moore LPN. Joanne and Aaron provided care to Erika’s mother, Hellen, on a surgical unit where she was an inpatient for 10 days last month. The complaint alleges that both LPNs failed on multiple occasions to meet standards related to therapeutic relationships and client-centred care by speaking rudely toward Erika and her mother, and by dismissing their questions, complaints, and concerns. The CLPNM has notified Joanne and Aaron of the complaint and asked both to offer a response.

Upon receiving the notice of complaint, Joanne is taken aback. She considers herself to be a good nurse. In fact, being a compassionate caregiver is an important part of her professional identity and her personal values. After the initial shock passes, Joanne begins to reflect on her encounters with Hellen and Erika. She considers that, since the unit has been short-staffed, she has often felt rushed and worried about meeting all of her clients’ needs. She admits to herself that the questions from Erika and Hellen did frustrate her, even if they were reasonable, because she was often focused on how much other work she had to complete. She considers that Erika was clearly worried about her mother’s health and seeking information in order to provide Hellen with reassurance. She admits she didn’t make much effort to hide her frustration toward Erika, or to answer their questions at another time.

Joanne thinks of ways she could have met Erika and Hellen’s needs for information while also meeting the needs of her other clients. For example, Joanne realizes she could have slowed down before entering Hellen’s room, so as not to appear so rushed. She could have also informed Erika and Hellen that, while she was busy at the moment, she valued their input and would be back to answer all of their questions.

Joanne responds to the complaint within the deadline. She provides information about how short-staffed and busy her unit has been, as context surrounding the events described in the complaint, but also indicates she was unaware at the time of how her behaviour was perceived by Erika and Hellen, and that she regrets she left either of them feeling that her care and conduct towards them was not compassionate. Joanne accepts accountability by admitting that she could have handled the situation differently and offers to write a letter of apology to Erika and Hellen.

Upon receiving the notice of complaint, Aaron is also taken aback. He, too, considers himself to be a good nurse. Considering that the unit has been so short-staffed, Aaron feels that nothing could have been done any differently. Aaron is angry about the complaint and angry with the CLPNM for not dismissing the complaint outright. Aaron doesn’t take the time to inform himself of his regulator’s responsibility to forward all complaints it receives to its Investigation Committee. Aaron thinks to himself: I have no time for this. He tosses the letter aside. After Aaron’s deadline for response passes, he receives a reminder from the CLPNM and an extended opportunity to respond. He does not respond.  

A few weeks later, the CLPNM Investigation Committee reviews the two reports regarding the complaints and the information gathered by CLPNM representatives in follow-up to the complaint. The Investigation Committee considers that Joanne has demonstrated insight into how her behaviour affected others, accountability by identifying how she could help the complainant feel heard and validated, and governability by responding to the CLPNM’s request for information and by participating in the process. The Committee accepts Joanne’s suggestion to send a letter of apology to Erika and Hellen and considers that to be an adequate resolution. Joanne sends the letter, the complainant is satisfied, and the Committee closes the file.

The Investigation Committee considers that Aaron has failed to respond to a request for more information, despite repeated reminders. In order to hear more from him, and to make a fair decision, the Investigation Committee directs Aaron to appear before them at a future meeting. Aaron, still feeling angry that the complaint wasn’t dismissed from the outset, does not attend the meeting. The Investigation Committee now has concerns beyond those outlined in the initial letter of complaint; the Committee is also concerned about whether Aaron accepts that, as a member of a regulated profession, he has a responsibility to “demonstrate governability by cooperating with CLPNM processes affecting [his] registration and practice.” ³ The Committee will now factor their additional concerns about his governability into their future decisions. 

Two similar complaints were lodged. Joanne resolved hers. Aaron escalated his.  Joanne’s complaint was quickly closed. There is no public record that there has been a complaint against Joanne, and no conditions are noted on her registration. Aaron’s complaint file will remain open while the Committee further considers how to address the concerns related to patient-centred care and the new concerns about his governability.

Aaron might be asked to agree to complete remedial education on his professional standards and obligations as a member of the profession. If Aaron does not agree or continues to refuse to participate in the process, the Committee may find it has no choice but to suspend his registration until he demonstrates that he has understood his professional responsibilities, and/or refer the matter to professional discipline. Any conditions or suspensions placed on his registration, in response to his ungovernable behaviour, will be public information. Any discipline finding would also become public information.

Reflection

As a member of Manitoba’s practical nursing profession, what are some of the ways that you demonstrate your commitment to upholding the standards of your profession and to participating in regulatory processes that affect your registration and practice? 

Examples might be:

• making honest disclosures on your renewal applications,
• renewing your registration by the deadline each year,
• responding to the CLPNM’s requests for information, and
• (if ever required) supporting the CLPNM in its efforts to fulfill its duty to regulate the profession in the public interest. 

Conclusion

Governability is about building trust – trust that regulated professionals can be effectively regulated. 

When members of a regulated profession demonstrate governability, it benefits

• the public by building confidence in their health care providers,
• other members of the profession by instilling trust in their profession overall, and
• the regulated professional, for example, by increasing opportunities to resolve a complaint through an agreement with the regulator and outside of a formal disciplinary process.

References

1. College of Optometrists of Ontario cited in College of Licensed Practical Nurses of Manitoba. Standards of Practice and Conduct. 2021.

2. College of Nurses of Ontario. Summarized Decision. s.l. : https://www.cno.org/en/learn-about-standards-guidelines/magazines-newsletters/the-standard/summarized-decisions/summarized-decisions-june-2021/alvin-davis-je101775/, 2021.

3. College of Licensed Practical Nurses of Manitoba. Standards of Practice and Conduct. 2021. Standard 5.

4. College of Optometrists of Ontario. Guidelines to Determine Relevance to Member’s Suitability to Practise. 2015.

5. College of Nurses of Ontario Discipline Committee. CNO v. Noseworthy-Gondermann. 2018.

6. Manitoba Court of Appeal. Kuny v College of Registered Nurses of Manitoba. 2016.

7. Ontario Health Professions Appeal and Review Board. I.B. v College of Massage Therapists of Ontario. 2018.

8. British Columbia College of Nurses and Midwives Inquiry Committee. Inquiry Committee Order. 2019.

9. College of Licensed Practical Nurses of Manitoba. The Complaint Process: A Fact Sheet for Registrants. 2022.