Legal and other professional experts have rightly been raising a few debatable questions about whether self-regulation of professions, such as advocates, architects, journalists and accountants, risks coming to an end following a constitutional court judgment two years ago nullifying the proceedings initiated by the Medical Council against Stephen Spiteri.

There should be no doubt whatsoever that when it comes to regulating transactions between the public and professionals, the government is expected to make sure that the public has some form of protection. For instance, statutory laws, rules and regulations help to ensure that our legal system is fair, teachers are knowledgeable, accountants behave in an ethical manner and physicians are competent.

Examples range from rules requiring informed consent when a member of the public has a medical procedure performed, to rules about insider trading for buying and selling stocks.

The question becomes, then, is it better to allow the professionals to regulate themselves through an organisation empowered by governmental legislation, or should the government regulate directly?

One of the most common approaches used by governments abroad to regulate the practice of professionals is through a system of professional self-regulation based on the concept of an occupational group agreeing with the government to formally regulate the activities of its members.

The agreement typically takes the form of the government granting self-regulatory status. This is done through a piece of legislation that provides a framework for the regulation of a specified profession and identifies the extent of the legal authority that has been delegated to the profession’s regulatory body.

The specific legal authority transferred from the government to the profession’s regulatory body varies with different regulatory models. Professional self-regulation may take the form of licensing, certification or registration.

In exchange for the benefits of professional status, the regulatory body of a profession is expected to develop, implement and enforce various rules designed to protect the public by ensuring that services from members of the profession are provided in a competent and ethical manner.

Such a professional self-regulatory body would be expected to set standards for who may enter the profession, set standards of practice for those working in the profession and create rules for when and how members may be removed from the profession. The self-regulatory model also generally requires that a regulatory body put in place a complaints and discipline system.

Generally, it is when things go wrong that the model and value of self-regulation come into question.

When a complaint is received that alleges a regulated professional has stepped out of the bounds of the rules that have been established, the organisation conducts the investigation, prosecutes the case if sufficient evidence is found to support the allegation, and holds a quasi-judicial hearing. If the allegations are proven at the hearing, disciplinary sanctions can then be applied.

The issue is that those outside of the profession, and even those within it who don’t clearly understand the complexities of how they are being regulated, don’t see this as always being a fair process. Those outside of the profession often interpret the process as the profession closing ranks to protect their own.

In reality, you may have a double-edged sword situation.

If everything goes the way that the complainant wants and a sanction is applied that the complainant feels is fair, he or she generally walks away satisfied.

If, however, the professional is found not to have acted improperly, or if found to have, but the sanction appears to be too soft in the complainant’s eyes, the idea that the profession closed ranks leaps to the forefront.

This is generally when the argument for government regulation gains strength.

The perceived benefits of government regulation are that the processes are wholly under the control of the government, not the profession. The government is supposed to represent the public, not the profession, so there should be no conflict of interest.

Still, I believe self-regulation is ultimately the best and most efficient and effective means of regulating professionals, as those setting the rules and expectations are also those who are most familiar with how the profession should be practised. To ensure, however, that the regulating organisation not only regulates while holding the public interest paramount but is seen by both the public and the regulated professionals as doing so fairly, significant transparency is necessary.

Public involvement is a must for transparency, and this needs to include an appropriate level of appointed public representatives on regulatory committees as well as having most meetings open to both the public and interested members of the professions.

This would dispel the perception that the profession closes ranks to protect its own.

In recent years, in order to improve their accountability to the public and limit the monopoly control that some professions have attained, many regulatory models around the world have undergone reform. These reforms have attempted to provide the public with access to a more transparent regulatory system as well as greater choice in who can provide various services.

The government can gain a great deal from allowing an occupational group to self-regulate. This form of regulation allows it to demonstrate that it has taken action to protect the public, but in a way that minimises the government’s role.

Finally, the self-regulatory model also transfers the cost of regulating from the government to the profession itself.

Last year’s constitutional court judgment should spur the government to act. 

Dr. Mark Said is an advocate