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Fundamentally, the goal of health professional regulatory regimes is to ensure the highest quality of care to the public. Part of that task is to control what health professionals do, or their scope of practice. Ideally, this involves the application of evidence-based professional standards of practice to the tasks for which health professional have received training. There are different jurisdictional approaches to achieving these goals.
Using a comparative case study approach and similar systems policy analysis design, we present and discuss four different regulatory approaches from the US, Canada, Australia and the UK. For each case, we highlight the jurisdictional differences in how these countries regulate health professional scopes of practice in the interest of the public. Our comparative Strengths, Weaknesses, Opportunities, Threats (SWOT) analysis is based on archival research carried out by the authors wherein we describe the evolution of the institutional arrangements for form of regulatory approach, with specific reference to scope of practice.
Our comparative examination finds that the different regulatory approaches in these countries have emerged in response to similar challenges. In some cases, ‘tasks’ or ‘activities’ are the basis of regulation, whereas in other contexts protected ‘titles’ are regulated, and in some cases both. From our results and the jurisdiction-specific SWOT analyses, we have conceptualized a synthesized table of leading practices related to regulating scopes of practice mapped to specific regulatory principles. We discuss the implications for how these different approaches achieve positive outcomes for the public, but also for health professionals and the system more broadly in terms of workforce optimization.
Keywords: Professional regulation, Scopes of practice, Health professions, US, Canada, UK, AustraliaFundamentally, the goal of health professional regulatory regimes is to ensure the highest quality of care to the public. Part of that task is to monitor and control what health professionals do, or their scope of practice. Ideally, this involves the application of evidence-based professional standards of practice to the tasks for which health professionals have received training. There are different regulatory approaches to achieving these goals across international and regional jurisdictions.
Regulatory authority lies in a range of professional as well as state institutions, revealing a continuum from professional autonomy to state control [1]. That is, professions and governments share regulatory authority to varying degrees, historically and between countries. There is even further complexity in the more contemporary era because in many cases new agencies and partnership organizations have been created to regulate at arms’ length from the professions and the state, in some cases in coordination across health professions within a given workforce. A shift from traditional professional self-regulation has occurred in many jurisdictions, often as a result of regulatory failures to protect the public [2]. Moreover, the regulation of health professionals and their work has become more constrained as governments strive to provide not only high-quality, but also cost-effective care to the public.
In this paper, we present and discuss four different regulatory approaches from the United States (US), Canada, Australia, and the United Kingdom (UK), highlighting the differences in how these countries regulate health professional scope of practice in the interest of the public. Across countries, the aims may be similar, but the mechanisms differ because of local historical policy legacies and cultural norms [2]. This makes comparative work challenging but also interesting. Whereas previous analyses have focused on professions and strategies, we focus on scopes of practice and institutional approaches. Our comparative examination finds that the different regulatory approaches in these countries have different implications for how health professional scopes are articulated and in turn how this can impact on health workforce optimization. They have each experienced different forms of regulatory failure and each are undertaking, in some cases, substantial reforms of their health professional regulatory models partly in response to these failures.
In this article, we are focused on the system-level impact of health professional regulation on scopes of practice. Regulation is only one of many system variables that influence scopes of practice. Others include collaborative practice agreements, delegation and supervision models, board certification, and funding arrangements. Professional associations may also impact scope of practice by seeking to defend or extend their members’ current scope as part of their advocacy role [3]. With few exceptions, however, the role of the regulator is separate from the role of professional associations and the regulators’ mandate of protecting the public interest imposes a unique impact on scope of practice.
Currently, one of the major influences on health professional scopes of practice globally is the COVID-19 pandemic. The pandemic has made clear the necessity of optimizing the workforce by ensuring all professionals are practicing to full scope [4]. Flexibility in scope has also been emphasized as a means to augment the health workforce, particularly in specific pandemic response areas. Maintaining public protection while ensuring access to the needed workforce is an important aspect of regulating scopes of practice that has become even more critical during the current public health crisis.
Although the core concern of health profession regulation is protection of the public, historically, achieving self-regulatory status was considered akin to achieving professional status [5, 6]. As Larson [7] describes, regulation often helped to create a state-sponsored monopoly over the profession’s services. This status attainment may have been afforded to only a few professions, reflecting a hierarchy within a division of labour. Health professional regulation, for example, often resulted in the constraining of a health professions’ scope of practice or modality ‘crystalizing’ the dominance of the medical profession [8, 9]. This differential outcome speaks to the dynamic relations that exist between the state and professions; a relationship that has evolved from granting state-sanctioned self-regulatory status [10] to funding health professional services and broader systems management.
Contemporary approaches to health professional regulation have increasingly focused on improving accountability to the public interest through more open, transparent, and publicly accountable processes for peer surveillance and control, in light of clinical mistakes threatening the safety of patient care [11–15]. Regulation by design should protect patients from the possibly deleterious effects of asymmetrical information between them and health professionals [16]. A focus on ‘patient safety’ challenges, what was traditionally the technical and esoteric domains of health professionals, was increasingly brought into the scope of political and managerial reform in healthcare [17].
The principles of right-touch regulation—where the level of regulation is proportionate to the level of risk to the public—have been used in varied ways by regulators across international jurisdictions to modernize regulation in the public interest [18]. This focus on risk management also highlights how health professions regulation must be flexible enough to support efficient and effective use of the health workforce. Nelson et al. [19] argued that regulating scopes of practice requires balancing the intersecting dimensions of flexibility—empowering teams to determine the relative responsibilities of the different practitioners based upon community need; and accountability—ensuring the optimization of scopes of practice within a professional regulatory environment. This intersection has sharpened during the COVID-19 pandemic with regulators being urged to enhance their flexibility, while maintaining accountability for protecting the public, as a way to augment the health workforce [20].
The pandemic has also highlighted a fundamental truth: society moves quickly while regulation and law tend to be more static, and regulatory frameworks need to be made nimbler and more responsive to meet the needs of modern society [21]. This is true as well in the regulation of scopes of practice as modern team-based care and technological advances increasingly transform health professional work. Despite the nexus between modernizing regulation and optimizing the health workforce, there is a gap in knowledge around the impact of different regulatory models on health professional scopes of practice.
We employed a comparative case study approach, informed by Yin’s [22] case study methodology, utilizing a similar systems policy analysis design [23]. This involved the collection and analysis of policy documents, published, and grey literature by locally situated investigators [24]. In two cases (US and Canada), the investigators were situated at arms-length from a professional regulatory body. In the other two cases (UK and Australia), the investigators are situated within regulatory structures. A common analytic template guided the comparative analysis along key institutional dimensions. Refinement of a preliminary analysis was undertaken after presentation to two different international audiences [25, 26].
The unit of comparative analysis is at the systems-level rather than the individual profession level, with the comparison focused across the regulatory approaches in each jurisdiction. For each case, the health professions regulatory framework used in each country is described highlighting the emergence of new institutional structures between professions and the government (state) and approaches to regulating health professional scopes of practice. The presentation of the data is both thematic and semi-chronological by country, highlighting key events that have shifted structures, organizations, and interests. We draw out of each case the strengths, weaknesses, opportunities, and threats (SWOT) institutional analysis which enables an appreciation of the implications of the different regulatory approaches for health professional scopes of practice and health workforce optimization. From our results and these SWOT analyses, we have conceptualized a synthesized table of leading practices related to regulating scopes of practice mapped to specific regulatory principles.
In the United States, the regulation of health professions primarily falls to the states. State-based laws and regulations define specific legal scopes of practice for health professionals including the health services that can be legally offered (e.g., controlled acts) and the circumstances under which these services may be provided (the context for professional practice). Regulation occurs under the auspices of a range of state agencies, including departments of health, education, and other state agencies in which regulatory boards are housed. The configurations of state boards vary in scope of authority, level of autonomy, and control over administrative processes [27]. A 2020 report on state regulatory structures provides a comprehensive overview of these configurations and included survey responses from 161 representatives in 45 states and the District of Columbia [27]. In 26 of these jurisdictions, regulatory boards had full autonomy in decision-making; 16 states employed a mixed model where some regulatory bodies had autonomy while others used a central agency for decision-making. Four states relied exclusively on a central agency for decision-making and boards functioned only in an advisory capacity.
Although states have the constitutional authority to govern regulatory processes, the federal government is able to influence state governance. Recent advisory opinions from the Federal Trade Commission and several court rulings, including one from the US Supreme Court, cite the inherent risk in self-regulation, i.e. the potential for professional self-protection [28] and monopolistic practice in violation of federal anti-trust laws [29]. These advisories recommend active oversight of certain board decisions by external bodies [30] to avoid unnecessarily anti-competitive outcomes. Several states have proposed changes in the structure of professional regulatory boards or have created centralized review boards with the power to accept or reject board recommended regulatory changes [29, 30].
A critical challenge associated with the regulation of health professions is state-to-state variation in scope of practice, which is limited by the location of the professional rather than by their skills and competencies. Most health professionals in the US are trained in nationally accredited educational programmes using standard curriculum and most complete national competency exams. Despite these national standards, some states limit a health professional’s ability to practice to the full scope of their demonstrated professional competency. State-based laws can restrict practice, which is especially relevant in times of crisis, and can also impede the provision of health services across state boundaries [31].
State licensing laws may also impede services when the consulting clinician is licensed in a state other than the one where the patient is located. To address this barrier, some states have opted to join interstate licensure compacts that allow a clinician who meets licensure requirements in one state to practice in other states in the compact. Although the models differ in detail, there is now a nurse licensure compact effective in 25 states [32] and an interstate medical licensure compact effective in 29 states and DC [33]. Other professions are developing interstate compacts as well, including emergency medical personnel and physical therapy. These compacts have been especially useful during the COVID-19 outbreak in the US, allowing clinicians to cross state borders and practice where there was great demand for health workers. In addition, in response to the need to quickly build workforce surge capacity during the pandemic, some states issued emergency regulations allowing physicians, nurses and other health professionals licensed and in good standing in other states to practice in their state.
Efforts to recognize new professions or modify scope of practice for existing health professions usually require the enactment of or amendment to state law, a process which is typically slow and, at times, adversarial. States often solicit input on proposed changes from stakeholders, including professional associations and, to a more limited extent, consumer groups. Emerging professions with fewer resources to mount advocacy campaigns may be disadvantaged in this process by more powerful and well-funded professional constituencies in a state.
Scope of practice regulations also affect the distribution of health professionals. Supervision requirements often result in the co-location of NPs and PAs with physicians, which limits their dispersion in underserved areas and results in reduced primary care capacity, especially in rural locations. A 2018 study that examined supply and distribution of NPs in the US found that the supply of NPs in geographic areas designated as health professions shortage areas was highest in states that recognized more autonomous scopes of practice for NPs [34]. In response to the COVID pandemic, some states temporarily waived supervisory requirements for NPs and PAs, which enabled them to practice where needed [35].
Health care in the US is changing and these changes have heightened discussion about the impacts of scopes of practice on access to needed services. Enacting regulations to support overlapping scopes of practice among health professionals is at the crux of many of the contentious debates occurring in states. Standardizing scopes of practice for health professions based on competencies would enable service delivery unencumbered by state boundaries. Proposing the establishment of new professions and expanding practice for existing professions must be based on the best available evidence and be within the parameters of training and competency for the profession [36].
Table Table1 1 details the SWOT analysis of the US case.
The SWOT analysis of the US case
Strengths
Supports workforce innovation responsive to local needs
Licensure compacts allowing licensure recognition and sharing of regulatory data across jurisdictions
Weaknesses
Patchwork of approaches and reforms across jurisdictions
Process for changing state regulations is slow, adversarial and costly
Failure to reconcile legal scope of practice with professional competency in state regulation
Opportunities
Increasing use of interprofessional team-based models of care
Enables the ‘testing’ of innovative models in one state for potential implantation across other states
Focus on population health
Threats
Restrictive scopes of practice are inefficient and can limit access to care
Failure to systematically evaluate workforce innovation
Health professional regulation falls under provincial and territorial jurisdiction in Canada. As such, and despite national-level accreditation and educational standards for many professions, there is substantial variation across the country in terms of regulatory models, which professions are regulated, and the activities that are regulated. As in the US case, this results in differential access to providers and services across the country.
What is common across Canada is the self-regulatory status of most health professions via the statutory delegation of authorities to the ministers of health to establish regulations, and to regulatory authorities (often called regulatory colleges) to govern their respective professions [37–39]. The introduction of new regulated health professions and scopes of practice changes therefore require either legislative or regulatory amendment. Professional regulatory authorities are responsible for establishing entry-to-practice credentials, maintaining a public register of health professionals, upholding standards of practice, and overseeing complaints and disciplinary proceedings. The regulators are expected to act in the public interest, which distinguishes them from professional associations that focus on professional interests [38–42].
The traditional model of health profession regulation across Canadian provinces is based on separate statutes and exclusive scopes of practice for each profession. There has been a trend to move away from this model towards umbrella frameworks characterized by overlapping scopes of practice [38, 39, 43–53]. This began with the Regulated Health Professions Act, 1991 (RHPA) [54] in Ontario and other provinces have since followed with similar umbrella legislation.
Umbrella frameworks apply uniform standards to the health professions that are governed by the legislation. The legislation sets out consistent provisions for governance, registration, complaints, discipline, appeals, public representation, regulation and by-law making powers. The umbrella act is accompanied by specific regulations or statutes for individual professions that confer title protection and include broad, non-exclusive scope of practice statements. These legislative statements are then used by the regulatory bodies to develop competencies, guidelines, and standards of practice. Legislative scope of practice statements and regulatory policies generally set the outer limits of the professions’ scope of practice.
In addition to title protection and non-exclusive scope of practice statements, the umbrella legislative frameworks enumerate a number of controlled or restricted acts. These controlled or restricted acts are an effort to balance promoting interdisciplinary care while still restricting higher risk activities to specific professional groups [39]. The same controlled activities may be granted to more than one profession and may also be delegated. The dominant position physicians maintain in the health care system is reflected in how many controlled acts they are authorized to perform [55].
The introduction of overlapping scopes of practice through the non-exclusive scope of practice statements and controlled acts model is also intended to enhance flexibility in the provider(s) who deliver services, as well as encourage interprofessional practice [47–49]. Other statutory changes to encourage collaboration, team-based models of care, and new providers have accompanied or followed the introduction of these umbrella frameworks [45, 50–52]. Newfoundland and Labrador, for example, has established the Council of Health Professionals, an independent body that is responsible for coordinating the regulation of eight health professions. In Ontario, 2009′s Regulated Health Professions Statute Law Amendment Act [56] mandated the health regulators collaborate in the development of standards where controlled acts are overlapping.
Umbrella legislation with overlapping scopes of practice does not entirely prevent scopes of practice from being a barrier to collaborative, team-based care, as it effectively entrenches a narrower range of controlled activities [50]. A 2018 report commissioned by the Ontario government identified the current system as ill-suited for the future since it prevents a health professional from embracing a broader scope of practice or engaging in a controlled act even if that professional can demonstrate an appropriate level of competence [57]. These umbrella frameworks have nonetheless been considered a key instrument for introducing regulatory flexibility and loosening the restrictiveness of scopes [44, 50]. At the very least, “Umbrella legislation with more flexible scopes of practice provides a possible foundation for collaborative models of care” ([19], p. 54).
Another Canadian province, Nova Scotia, has taken an alternative approach to facilitating regulatory collaboration and flexible scopes of practice. In 2012, Nova Scotia introduced the Regulated Health Professions Network Act [58] to establish a statutory Network of self-regulating health professions that enables voluntary regulatory collaboration. The Network legislation authorizes regulatory authorities to enter into agreements respecting the interpretation or modification of scopes of practice without the need for further legislative amendment, provided the provincial health minister determines the agreement is in the public interest [59]. Reform is currently proposed in British Columbia that would see a reduction in the number of regulatory authorities from 20 to six [60]; this reform recognizes that regulating single professions in isolation does not allow regulatory colleges to respond nimbly to the complexities of modern team-based care.
Health professional scopes of practice in Canada have traditionally been enshrined in regulatory regimes on the basis of history and politics rather than best utilizing skills and knowledge best meet contemporary population health needs [19]. That seems to be changing with the complement of regulatory reform recently undertaken and currently proposed in Canada to facilitate collaboration and provide more flexibility in order to support health workforce innovations. The COVID-19 pandemic has necessitated further emergency reforms to facilitate surge capacity, such as policies to allow for internationally educated health professionals to be granted emergency licensure and upskilling to allow for pandemic-related task shifting [61]. However, the continued reliance by most Canadian provinces on discrete regulatory authorities for individual professions and the lack of national coordination around scopes of practice form barriers to interjurisdictional mobility and efficient health workforce reform.
Table Table2 2 details the SWOT analysis of the Canadian case.
The SWOT analysis of the Canadian case