Models in Professional Regulation: Choices for Atlantic Canada?

In post-pandemic Canada, there is a continued healthcare crisis. There are shortages of healthcare providers, provider burnout, unfilled locums (ie, temporary absence or vacancy), patient waitlists, and geographical maldistribution of providers. In addition, the restraints and restrictions on the mobility of providers and the use of virtual care across borders demonstrate the constraining impact of the current regulatory framework from addressing increased waitlists and, in particular, the provision of care to those in rural, remote, Northern, and Indigenous communities. It is time to modernize the professional regulatory framework with an underlying policy motive to improve access to and continuity of health care while maintaining public protection and respecting the Constitutional division of powers between the federal and provincial/territorial (ie, state) governments.

It is recommended that as a partial solution to the healthcare crisis, Canadian provincial and territorial (hereinafter “provincial”) governments pass legislation in support of multi-jurisdictional licensure. There are various models to achieve this.

Canada is a federated country comprised of 10 provinces and 3 territories. Atlantic Canada refers to the 4 most eastern Canadian provinces, Prince Edward Island, New Brunswick, Nova Scotia, and Newfoundland & Labrador, collectively representing about 2.4 million people. Each Atlantic province (indeed all the provinces and territories) has its own medical regulatory authority or college of physicians and surgeons (akin to a state medical board). In the Atlantic provinces, the 4 colleges represent about 6400 licensed physicians. Their mandates are the same: licensing physicians, developing and monitoring standards of practice, and investigating complaints. The difference between the regulatory authorities is that each legislated mandate is restricted to its provincial borders. After the recommended modernization with an Atlantic regional license, the mandate would capture the same aggregate geographic area and the same aggregate population served by the same aggregate number of physicians. For example, the ratio of licensed physicians to the population across the 4 provinces is X/Y. With an Atlantic license, the ratio of licensed physicians in the 4 provinces will remain the same, namely X/Y. However, the impact will be efficiencies such as less redundant licensing; increased mobility of physicians across 4 geographical areas to assist colleagues who are burning out or for surge capacity; maximized use of virtual care to support continuity of care (eg, post-surgical care when the patient lives in a different Atlantic province from their surgeon); and the maintenance of existing physician-patient relationships when studying or working in a different Atlantic province.

As far back as January 2019, the Premiers of the 4 Atlantic provinces have spoken of a single regional licensing system.¹  Most recently, the Premiers collectively advised the medical regulatory colleges “to identify a regional approach that would ensure that physicians licensed in the region are able to practice in all Atlantic Provinces without the need to acquire more than 1 license…”.²  One medical regulatory authority responded that it was “eager to explore any initiatives that reduce the regulatory burden on physicians and promote patient access…”.³ 

To this end, this paper will describe 6 licensing models. The 2 models that stand out for recommendation are the US Nurse Licensure Compact and the Australian National Registration and Accreditation Scheme. Either could legitimately and permanently meet the Premiers' directive noted above. The others will not. During COVID-19, many Canadian provinces and US states addressed the pandemic crisis by passing emergency legislation or executive orders providing temporary licenses for practice across provincial/state borders by temporarily waiving requirements.⁴  However, permanent redesign of the regulatory framework is needed to meet the continuing healthcare crisis.

This section describes 6 existing licensing models as identified in Table 1 below.

In countries with a federated constitutional system, like the US, Australia, and Canada, a division of powers exists between the federal government and its component states or provinces. The constitutionally granted powers are allocated, usually exclusively, between the federal government and the states or provinces. With respect to the regulation of health care providers, the power is allocated to the states or provinces. Provincial regulatory authorities or colleges of physicians and surgeons or state medical boards were created with legislated mandates to regulate health care providers within the state or province and issue uni-jurisdictional licenses to practice within its own borders.

The mandate of a regulator consists of regulatory policy work, such as developing entry-to-practice requirements, standards of practice, codes of conduct and ethical and professional behavior, capacity requirements, quality assurance/continuing competence requirements, and investigating complaints and adjudicating discipline.

The significant activities of a jurisdiction's regulatory authority are primarily financed via registration fees for the applicants and current licensees. The resulting administrative burden of compliance is shared by the regulatory authority, the applicants, and the licensees. The inherent delays occur in the documentation retrieval by the applicants and the processing by the authority. Each jurisdiction has developed its own comprehensive rules and processes that are similar in nature. The websites of the 4 Atlantic medical regulatory authority colleges have a combined total of more than 2800 pages or an average of more than 700 pages each. Healthcare providers seeking to practice across several provincial borders must repeat a parallel application process with each jurisdiction's regulatory authority, pay multiple fees, and bear numerous administrative burdens.

This was the original model for Australia. It remains the current model in Canada for regulated health-care providers. This also is the current model in the US except for those states that have entered into a Compact (more below).

The US medical/physician profession best reflects an expedited model through an Interstate Medical Licensure Compact (IMLC).

A compact (not a term commonly used in Canada) is an agreement, usually between nations or states. It is a mutual consent of parties respecting something that is to be done.⁵  The public policy for the IMLC and Nurse Licensure Compact (discussed in the next section) is to support both provider physical mobility and the use of technologies as part of the healthcare delivery system. The result is improved access to health care, especially in rural and remote locales, and decreased wait times.

The IMLC has been in place since 2017, and 38 states participate. It is a voluntary expedited pathway to licensure for qualified physicians who wish to practice in multiple states. The steps are that a licensed physician applies to their principal home state medical regulator to participate in the Compact, and once approved—there is a list of criteria and payment of a fee—then the physician chooses which states within the Compact the physician wishes to practice in. Each chosen state medical board then issues a separate license to the physician. Thus, a physician wanting to practice cross-state virtual care in all the participating jurisdictions would have 38 different licenses and is required to meet the continuing medical education and maintenance of license requirements of each state that the physician holds a license.

This model is viewed at best as being an “expedited process” and a “clearinghouse”⁶  as it allows the sharing, between state boards, of information that physicians have submitted to their “home” or “principal” state. Some have suggested that the model is not working well, while others recommend that state participation in the ILMC be made mandatory.^7–11  However, any expedited licensing model fashioned along the lines of the IMLC would fail to meet the spirit of the words of the Atlantic Premiers quoted above because it would retain the administrative and financial burdens of requiring multiple license applications, albeit expedited.

The Nurse Licensure Compact (NLC) in the US is a multi-jurisdictional license that permits a nurse to practice in 38 states. It has been in place since 1999. Each participating state passes model legislation that grants permission to join the Compact. The nurse applies to their primary state of residence for the multi-jurisdictional license, and if the uniform licensure requirements are met, a multistate license is granted. With this multistate license, the nurse is subject to each of the state board's standards of practice and to each state's laws wherein the nurse is practicing. Unlike the IMLC, the nurse is only required to meet the continuing education requirements of their primary state.

The mechanics of the IMLC are like the NLC but the result is vastly different. In the NLC model, the nurse receives a multistate license. In contrast, in the IMLC the physician receives a separate license from each of the Compact participating jurisdictions via one application. That is, unlike the medical model, the nurse does not get a separate license from each nursing state board nor has to pay separate state board licensing fees.

The NLC model is an innovative approach that addresses the administrative and financial burdens and the delays of multiple jurisdictional regulations borne by the individual. In addition, this model supports the mobility of nurses, access to care, and continuity of care while ensuring the meeting of minimum requirements regardless of the home state of licensure.

This is a lesser-known model. The Canadian federal government has jurisdiction over various geographical lands, such as national parks. To assist with the surveying of these lands that often cross over provincial/territorial borders, the federal government passed legislation to bypass the necessity of surveyors having to get licensed in each province when carrying out surveys in multiple provinces. To this end, the Association of Canada Lands Surveyors (“Association”) was created by an Act of Parliament in 1998. It became a licensing body in March 1999 when the Canada Lands Surveyors Act, SC 1998, became effective. It is now being amended to improve labor mobility and better align with the Canadian Free Trade Agreement.¹²  The Association is under the authority of the Ministry of Natural Resources Canada as a self-governed association and regulatory body, licensing professionals who survey in a special category of lands called “Canada Lands,” which encompasses the 3 territories, national parks in all provinces, oceans, and indigenous reserves. The main route to becoming a Canada Lands Surveyor starts with holding and maintaining a provincial surveyor license. From there, the individual applies to the Association of Canada Lands Surveyors for certification. Once certified, the Canada Lands Surveyor can practice across Canada on “Canada Lands.”

The Canadian federal government has jurisdiction through the division of powers under the Constitution to provide insured health services for specific populations. These are: a member of the Canadian Forces; a person in a federal penitentiary; and a resident of a province who has not completed a minimum length of stay in the province (ie, residency period).¹³ 

The licensing model for the provision of health care by those providers who work for the Canadian Forces Health Services is like that of the Canada Lands model described above. A health provider must have a provincial license. This 1 license permits the provider to deliver care to all Canadian Forces members domestically and internationally in a military location or on training exercises. For example, a physician does not need a separate license from each province to practice in all areas and territories if the physician is providing care to Canadian Forces members in a military facility or on a training exercise. In this way, the federal government asserts its jurisdiction over the armed forces, and the physician does not need to meet the licensing requirements of the province (although they are required to meet the standards of practice of the province). However, once the provider leaves the military location and works in a civilian setting, such as a public hospital, providers must have a license from each province in which they want to practice.

A “national” license is a multi-jurisdictional license whereby a single licensing process permits practice across multiple jurisdictions. Such a license could be issued by 1 participating jurisdictional medical regulatory authority and be recognized automatically under legislation by the other participating authorities. Alternatively, the license could be issued by a common central agency created and governed by participating jurisdictions. Either approach supports the communication by the Atlantic Premiers to the 4 medical regulatory colleges to “implement a regional approach that would ensure physicians licensed in the region can practice in all Atlantic provinces without the need to acquire more than 1 license and pay additional licensing fees”.¹⁴  The end result would be a licensing process that allows medical practice across the 4 Atlantic provinces of Canada.

We will now refer to the existing models that could achieve a Canada Medical Doctor License or a regional license, such as an Atlantic Medical Doctor License.

The first example of an existing model is the NLC, outlined above. For an Atlantic Medical Doctor License, each Atlantic province would pass model legislation and amend any of their provincial legislation as required to license physicians contemporaneously. The legislative policy goal would be recognizing that a single licensing process would result in a license recognized by the 4 Atlantic Provinces. For example, the provincial legislation would indicate that the holder of an Atlantic regional license is deemed to be licensed to practice in that province.

A second example of an existing model to achieve a Canada Medical Doctor License¹⁵  or Atlantic Medical Doctor License is found in the Australian National Registration and Accreditation Scheme.¹⁶  In this scheme, there are National Boards for each of the health professions (eg, nursing and medicine). The National Board issues the license, and a national agency, the Australian Health Practitioner Regulation Authority, processes the applications. To adopt that model in Atlantic Canada would require the delegation by each province of registration and regulation to a central Atlantic agency.

However, Australia has gone further than the licensing activity. In modernizing their regulatory framework, to resolve a health workforce crisis, the Australian states decreased the duplicative regulatory functions by delegating those functions to the central agency.¹⁷  For Canada, this could be a Medical Licensure Regulatory Authority (for the Canada Medical Doctor License) or in the case of the Atlantic Medical Doctor License to an Atlantic Medical Licensure Regulatory Authority.

It is unlikely that a central regulatory agency, as described above, is in the existing mindsets of provincial/territorial governments and regulators who are bound by provincial legislation and provincial budgets limiting collaboration outside of narrow memoranda of understanding. For example, the College of Physicians and Surgeons of Newfoundland and Labrador, in response to some proposed changes to its Medical Act, underscored its goal “…is to work together to ensure that the physicians who are licensed to practice medicine provide safe and quality care to the people of Newfoundland and Labrador”.¹⁸  It is understandable that the goal of public protection is restricted to their province given their mandates are dictated by provincial legislation.

Nevertheless, governments could, through legislation, recognize licenses issued by other provinces or through central agencies resulting in the goal of multi-jurisdictional or regional licensure.

Over many years there have been numerous efforts to address the drawbacks of Canada's uni-jurisdictional licensing framework. Much of this was done between provincial regulators through mutual recognition agreements whereby credential recognition by one jurisdiction (eg, educational requirements) will be recognized by another jurisdiction. These efforts helped align but did not abolish differences in eligibility criteria across the country. The regulators have a legislative mandate to protect the public within their provincial borders and therefore, at best, can align licensing requirements but never to eliminate them. As with expedited models, the financial and administrative burden on applicants and delays in processing license applications remained.

The Canadian Free Trade Agreement, which was negotiated between provinces, assured that a certified worker in one province or territory can apply to be certified in the same occupation in another province or territory without having to undergo significant additional training, examination, or assessment.¹⁹  However, that too did not eliminate the significant financial and administrative burden on applicants and delays in processing applications for licensure.

There were spot examples where licensure requirements were waived: i) an agreement between the Colleges of Physicians and Surgeons of Manitoba and Ontario with respect to cross-border patient transport operations between Ontario and Manitoba;²⁰  ii) the locum memorandum of understanding between the 4 Atlantic medical regulatory authorities;²¹  iii) 2 memorandum of understandings between jurisdictional regulatory authorities of physiotherapists on cross border physiotherapy²²  and to support physiotherapy labor mobility within Canada; and iv) a memorandum of understanding between the Government of Nunavut with each of the medical regulators of Alberta, Ontario, Manitoba and Northwest Territories permitting virtual care to Nunavut residents.²³  However, these agreements, although commendable, have little effect on modernizing the increasing harm caused by the uni-jurisdictional licensing framework in Canada.

While there have been shifts in professional regulatory governance and obligations under new legislation, in comparison to Australia and the United States, Canada has steadfastly preserved its original regulatory framework of uni-jurisdictional licensing. Given environmental factors, it is time to modernize the framework. The limitations of provincial and territorial borders have become increasingly apparent and no longer justifiable when it comes to supporting continuity of care, filling of locums, virtual care, mobility of patients and health care providers, and mitigating of provider burnout.

There is a sign of hope that modernization of Canada's licensure framework will occur in the discussions between the Atlantic governments and regulators. When modernization occurs, one might look back with gratitude to Atlantic Canada for a fresh approach to licensing physicians.