QUEBEC PROFESSIONAL LAW AS AN OBSTACLE TO INTERPROFESSIONAL CARE
PATRICK GARON-SAYEGH
Faculty of Law and Biomedical Ethics Unit McGill University, Montreal
December 2016
A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master’s of Law, Specialization in Bioethics
© Patrick Garon-Sayegh 2016
TABLE OF CONTENTS
ABSTRACT ii RÉSUMÉ iii ACKNOWLEDGEMENTS–REMERCIEMENTS iv INTRODUCTION 1 CHAPTER 1. THE OBJECT OF STUDY 4 §A. OCCUPATIONS AND PROFESSIONS DEFINED 4 §B. QUEBEC'S PROFESSIONAL SYSTEM 5 i. Two Types of Professions 5 ii. Institutional Structure 14 §C. CONCLUSION TO CHAPTER 1 18 CHAPTER 2. HISTORY OF THE PROFESSIONAL SYSTEM 21 §A. WHY HISTORY MATTERS 23 §B. THE GENERAL HISTORICAL CONTEXT 28 §C. THE CASTONGUAY-NEPVEU COMMISSION 35 i. Formation and mandate 36 ii. Overview of the Commission’s Report 36 a. Volumes I–III 37 b. Volumes IV–VII 43 iii. Protection of the public 50 a. A Central Objective 51 b. Palliating Mistrust 54 c. Institutional Solutions 57 iv. Systemic Vision: Bringing Order to Disorder 61 a. Conceptual Disorder 61 b. A New Definition 65 c. Factual Disorder 69 d. Systematization 74 v. Aftermath of the Commission’s Report 79 §D. CONCLUSION TO CHAPTER 2 84 CHAPTER 3. STRUCTURED CONFLICTS 86 §A. BOUNDARY IDENTIFICATION 88 i. Boundaries and the Commission’s Discourse 90 ii. Examples 91 iii. Separating Legal Authority from Clinical Ability 100 §B. COMPETITION AND CONTROL 104 i. How dominance is created 107 a. Exclusive Professions 110 b. Professions with Reserved Titles 113 ii. Professional Rivalries 116 iii. Functionalism and Failed Policy 119 §C. CONCLUSION TO CHAPTER 3 123 CONCLUSION 126 BIBLIOGRAPHY 129
i ABSTRACT
I argue that Quebec professional law poses an obstacle to the implementation of interprofessional care in the healthcare system. Interprofessional care is distinct from multi- professional care. The former requires different types of professionals to work in a thoroughly integrated fashion, constantly communicating and collaborating, sharing knowledge and decision-making responsibility. The latter only requires patients to be seen by different types of professionals; it allows for minimal communication and little or no sharing of tasks, knowledge and responsibilities. In Chapter 1, I describe Quebec’s professional system—the legal regime that regulates all professions in the province. One of the central characteristics of this system is the fact that it organizes professions into reserved scopes of practice, which determine the types of activities that professionals are legally entitled to perform. In Chapter 2, I describe the history of the professional system, in order to expose the reasons for which professional law acts as an obstacle to the implementation of interprofessional care. I argue that these reasons are rooted in history. I give an overview of the general historical context, and show how the professional system and the healthcare system are historically intertwined. I then focus on a key actor in the emergence of these two systems: the Castonguay-Nepveu Commission. I argue that this parliamentary commission’s report laid the conceptual foundation for today’s professional and healthcare systems. I focus on the ways in which the Commission rationalized its proposals using a discourse whose essential features persist to this day in professional law and the professional system. In Chapter 3, I describe how the Commission’s discourse contributes to perpetuating dynamics that obstruct the implementation of interprofessional care. Professions are separated from each other in rigid and unproductive ways. Professions’ incentives towards collaboration are decreased. The team ethos that is necessary for true interprofessional care is undermined by professional rivalry. I conclude that in order to truly implement interprofessional care in the healthcare system, our understanding of professions and professional regulation must change. Otherwise, future reforms of professional law will fail to remove the obstacles to interprofessional care that I describe.
ii RÉSUMÉ
Mon argument est le suivant : le droit professionnel québécois constitue un obstacle à la mise en œuvre de soins interprofessionnels dans le système de santé. Les soins « interprofessionnels » sont distincts de ceux dits « multi-professionnels ». Dans le premier cas, les divers professionnels soignant le patient travaillent ensemble de manière profondément intégrée : communiquant et collaborant constamment, et partageant savoir et responsabilité décisionnelle. Dans le second cas, les patients ne font que consulter et être soignés par divers professionnels, sans que ces derniers ne communiquent ensemble de manière poussée et sans partage réel de tâches, savoir, et responsabilités. Dans le Chapitre 1, je décris le système professionnel québécois—le régime juridique encadrant toutes les professions de la province. Une des caractéristiques clef de ce système est qu’il organise les professions selon des sphères d’activités réservées qui déterminent les types d’activités que les professionnels peuvent légalement entreprendre. Dans le Chapitre 2, je décris l’histoire du système professionnel afin d’exposer pourquoi le droit professionnel agit comme obstacle à la mise en œuvre des soins interprofessionnels. Je soutiens que les causes ont des racines historiques. Je donne un aperçu du contexte historique général dans lequel sont nés le système professionnel et le système de santé, et je démontre comment ces deux systèmes sont historiquement entremêlés. Je me concentre plus particulièrement sur un acteur central de l’émergence de ceux deux systèmes : la Commission Castonguay-Nepveu. Je soutiens que cette commission parlementaire est à l’origine du cadre conceptuel sur lequel s’appuient ces deux systèmes. Je détaille la manière dont la Commission rationnalise ses recommandations à travers un discours dont les caractéristiques essentielles persistent à ce jour dans le droit professionnel et le système professionnel. Dans le Chapitre 3, je décris comment le discours de la Commission contribue à perpétuer des dynamiques qui obstruent la mise en œuvre des soins interprofessionnels. Les professions se trouvent séparées les unes des autres de manière rigide et non-productive. Les professions voient leurs incitatifs à la collaboration diminués. L’esprit d’équipe nécessaire à la mise en œuvre de réels soins interprofessionnels est miné par les rivalités professionnelles. Je viens à la conclusion suivante : afin de réellement mettre en œuvre les soins interprofessionnels dans le système de santé, la manière dont nous comprenons les professions et la réglementation professionnelle doit changer. À défaut, de futures réformes du droit professionnel n’enlèveront pas l’obstacle que le droit professionnel pose aux soins interprofessionnels.
iii ACKNOWLEDGEMENTS–REMERCIEMENTS
This thesis was made possible thanks to the support and encouragement of many people, to whom I extend my warmest thanks.
I thank my supervisor, Professor Vincent Forray, for his insightful comments and genuine interest and enthusiasm for my chosen thesis topic. His practical advice with respect to drafting was key to helping me shape this thesis into its final form. He helped make my thesis-writing experience an inspired one, and for that I am privileged. I also thank Professor Daniel Weinstock for agreeing to act as the second evaluator of my thesis, and for his observant and kind comments.
J’aimerais également remercier les Professeures Lara Khoury et Alana Klein, co- responsables du Groupe de Recherche en Santé et Droit de McGill, pour m’avoir impliqué dans les activités du Groupe. J’ai également pu bénéficier du support financier du Groupe, ce pour lequel je suis très reconnaissant.
I was lucky to have two great friends and lawyers who were willing to listen to my ideas, review my thesis and provide valuable feedback: Maîtres Anik Pierre-Louis and Marc Bishai. I extend my heartfelt gratitude to them for their time, insights and friendship.
J’ai eu le privilège d’avoir d’excellents mentors, sans lesquels je n’aurai jamais développé les habiletés qui m’ont permises d’entamer mon projet de recherche et rédiger ce mémoire. En premier lieu, je désire remercier Maîtres Luc Gratton et Normand D’Amour, autant excellents juristes et avocats que collègues de travail. Je suis l’avocat que je suis grâce à eux, ce pour quoi je leur serai toujours reconnaissant. Je dois aussi énormément à mon ancien Professeur et Doyen à la Faculté de Droit de McGill, Nicholas Kasirer, maintenant juge à la Cour d’appel du Québec. J’ai appris de lui que la beauté du droit réside en son non- dit et ses « entre deux » (ou même trois !) : l’outre-loi entre les lignes et les langues.
Of course I could not have pursued this project without my family. My parents’ encouragements and support were key in my decision to pursue graduate studies. Considering the excellent experience I have had, I cannot thank them enough. My sister Catherine and her husband Walid must be commended for patiently listening to me ramble on about my academic interests. Finally, my wife Marie has been astonishingly patient, understanding and loving throughout the course of my master’s studies, despite my ceaseless retreats into thick bubbles of thought. Her sensible advice has kept me on track in more ways than I can count, and her sustained interest for my topics of study have been immensely helpful to me as I refined my ideas. I am privileged to share my life with her. Merci infiniment.
iv INTRODUCTION
Professionals are a central feature of Quebec’s healthcare system. Physicians, nurses, and members of over a dozen other professions provide the services that are at the core of the healthcare system’s mission. All professionals in Quebec are regulated under a comprehensive legal regime, one that is commonly referred to as the “professional system.” The professional system shapes the organization of work in the healthcare system, most notably via the rigid boundaries it establishes around each profession’s activities. These boundaries are “rigid” because they can only be crossed under strict conditions, and failure to respect these conditions exposes one to penal sanctions. In other words: the professional system legally entrenches certain organizations of work (or task allocations) between professionals working within the healthcare system.
Although the professional system is intended to protect the public, I argue in this essay that professional law may instead harm the public by hindering the implementation of “interprofessional care,” which can be contrasted to “multidisciplinary care.” The latter approach is unfortunately what most patients in the healthcare system experience. Patients often consult a number of different professionals from a number of different professions in order to deal with their health problems. This is particularly the case with patients who suffer from complex, multi-symptomatic conditions and chronic conditions, as well as populations with multiple healthcare needs, such as the elderly. If the different professionals consulted by the patient do not communicate with each other and strive to integrate their work into a common effort, the patient is treated following the multidisciplinary care approach. In contrast, interdisciplinary care sees the different professionals communicating intensively with each other, working together towards a common objective in an atmosphere of trust, mutual understanding and shared responsibility. In essence, interprofessional care can be understood as a culture or ethos of work.1
Interprofessional care is widely recognized as a method of healthcare delivery that can improve quality of care, access to care, and reduce the costs of frontline healthcare
1 See e.g. Mike Nolan, “Towards an Ethos of Interdisciplinary Practice” (1995) 311:7000 British Med J 305; Pippa Hall, “Interprofessional Teamwork: Professional Cultures As Barriers” (2005) 19:sup1 J Interprofessional Care 188 at 192-193; John HV Gilbert, “Interprofessional Learning and Higher Education Structural Barriers” (2005) 19:sup1 J Interprofessional Care 87 at 102–103; Anne-Patricia Prévost & Claude Bougie, “Équipe multidisciplinaire ou interdisciplinaire: Qui fait quoi?” (2008) 43:11 Le médecin du Québec 43 at 44–45.
1 delivery.2 The governing bodies of the medical, nursing and pharmacy professions in Quebec have recently released a joint statement in which they express support for greater implementation of interprofessional care. 3 In it they state that interprofessional care improves the protection of the public through the delivery of interprofessional care, which has the potential to improve the quality and safety of healthcare delivery. However, despite the “clarion call from politicians, health policy analysts and scholars for improved efficiency through interprofessional collaboration,” the objective of implementing interprofessional care has yet to be adequately achieved.4
I argue that the lack of success in implementing interprofessional care is in part attributable to professional law. More specifically, this is due to: the ways in which professional law promotes competition rather than collaboration between healthcare professions; the ways in which healthcare professions are being segregated rather than united. If interprofessional care is to be achieved through the cultivation of a spirit or ethos, then any source of conflict will act as an obstacle to this cultivation.
This essay is divided into three Chapters. In the first two Chapters, I set the terrain for the critique that I undertake in the last Chapter. I begin in Chapter 1 by defining the object of study: the “professional system.” I give an overview of the main features of this legal regime, and highlight aspects that are central to my critique. I then move on, in Chapter 2, to the history of the professional system. As will become apparent, the history of Quebec’s healthcare and professional systems are intertwined. I describe the general historical context in which these systems came to be, and focus especially on how the Castonguay-Nepveu Commission shaped key features of the professional system—features that are at the heart of the critique I develop in Chapter 3. In this last Chapter, I show how
2 See e.g. Pippa Hall, ibid at 194; Sandra Regan et al, “Legislating Interprofessional Collaboration: A Policy Analysis of Health Professions Regulatory Legislation in Ontario, Canada” (2015) 29:4 J Interprofessional Care 359 at 359; Marco Laverdière & Catherine Régis, “Comprendre les conflits interdisciplinaires pour mieux y faire face : Un défi pour le système professionnel québécois” in Catherine Régis, Lara Khoury, Robert P Kouri, eds, Les grands conflits en droit de la santé: Les rencontres en droit de la santé – Volume 1 (Montreal: Yvon Blais, 2016) 193 at 193–194. 3 Ordre des infirmières et infirmiers du Québec, “Énoncé de position conjoint sur la collaboration interprofessionelle: Rehausser la qualité et la sécurité des soins” (Montreal: Ordre des infirmières et infirmiers du Québec, 2015), online:
2 professional law and its conceptual underpinnings—underpinnings that we have inherited from history—act as obstacles to interprofessional care. Consequently, I argue that unless interprofessional care policies or laws are designed to uproot these underpinnings, professional law will remain an obstacle to interprofessional care.
3 CHAPTER 1. THE OBJECT OF STUDY
In this Chapter, I briefly describe (in §B) the main features of Quebec’s “professional system,” that is: the comprehensive legal regime under which all “professions” in the province are regulated. Before describing Quebec’s professional system, I explain (in §A) the distinction between two oft-recurring terms in this essay: “profession” and “occupation.” I conclude this Chapter (in §C) with observations applicable to the entire professional system.
§A. Occupations and Professions Defined
The term “occupation” is broader than the term “profession” and usually refers to any type of regularly undertaken activity: a job, a profession, or even at its most general “a way of spending time.”5 In this text, the term “occupation” refers to any work-type activity regularly undertaken by a person or group of persons. The activity need not be undertaken against remuneration to be considered an occupation: volunteer fire fighters and homemakers are engaged in the occupations of fire fighting and homemaking.
The term “profession” usually refers to “a paid occupation, especially one that involves prolonged training and a formal qualification.”6 Professions, therefore, are more specific types of occupations. In this text I use the term “profession” even more specifically than the definition just provided; I define professions as occupations that are legally constituted as professions under Quebec’s comprehensive legal regime of professions, and regulated by this regime’s institutions. In other words: professions in Quebec are only those occupations that are included in Quebec’s professional system.
This important distinction between “occupations” and “professions” has several other facets not immediately captured by the above definitions. I address these more subtle aspects when necessary in other sections of the text. The simple terminological distinction outlined above is sufficient to understand the description of Quebec’s professional system that follows.
5 Oxford Dictionary of English, 2nd ed (revised), sub verbo “occupation” [OED]. 6 Ibid sub verbo “profession”.
4 §B. Quebec’s Professional System
Quebec’s professional system is a comprehensive legal and institutional regime designed to regulate all professions in the province. I describe the regime as comprehensive given the existence of a central, “umbrella” statute: the Professional Code,7 which creates the legal and institutional structure within which all professions are regulated.8 The Professional Code performs two key functions. First, it distinguishes between the two different types of professions that exist in the professional system. Second, it establishes the institutions9 charged with overseeing different aspects of the professional system and the system’s overall organizational structure. Both of these features are described in the next two divisions.
i. Two Types of Professions
The Professional Code distinguishes between two types of professions: exclusive professions and professions with reserved titles. Exclusive professions are listed at article 32 of the Professional Code. Every exclusive profession is both constituted under and subject to a profession-specific statute 10 as well as several regulations, 11 but remains subject to the Professional Code’s general provisions.12 Exclusive professions, as their name suggests, have the exclusive right to perform or engage in the professional activities reserved to them under their profession-specific statute, as well as the exclusive right to use the professional
7 CQLR c C-26. 8 Ibid, s 2 (“this Code applies to all professional orders and to their members”); Jean-Guy Villeneuve, Nathalie Dubé & Tina Hobday, Précis de droit professionnel (Cowansville: Yvon Blais, 2007) at 2. 9 Throughout the text I use the terms “institution” or “social institution” to refer to: a complex of roles, practices, norms and values that organize relatively stable patterns of human activity, thereby addressing recurrent themes or issues in human society (or societies) via persons qua institutional role holders; social institutions can be, for example: political, economic, legal, or even modes of discourse; social institutions should be distinguished from cultures or societies, which are more complex social forms composed of a number of institutions. This definition is a composite of definitions of “social institution” used in contemporary sociology. See Seumas Miller, “Social Institutions” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy, Winter 2014 ed, online:
5 designations, titles and abbreviations that identify them.13 A profession’s whole range of reserved activities—its “lawful sphere of activity”— is often referred to as its “scope of practice.”14
The medical profession is the most prominent example of an exclusive profession. It figures among the list of exclusive professions found at article 32 of the Professional Code and is governed by its own statute—the Medical Act.15 Section 31 of the Medical Act defines the practice of medicine and lists the activities that are reserved to physicians:
31. The practice of medicine consists in assessing and diagnosing any health deficiency in a person in interaction with their environment, in preventing and treating illness to maintain or restore health or to provide appropriate symptom relief.
The following activities in the practice of medicine are reserved to physicians:
(1) diagnosing illnesses;
(2) prescribing diagnostic examinations;
(3) using diagnostic techniques that are invasive or entail risks of injury;
(4) determining medical treatment;
(5) prescribing medications and other substances;
(6) prescribing treatment;
(7) using techniques or applying treatments that are invasive or entail risks of injury, including aesthetic procedures;
13 Professional Code, supra note 7, s 32; Villeneuve, Dubé & Hobday, supra note 8 at 113. 14 See e.g. Barabara J Safriet, “Closing the Gap Between Can and May in Health-Care Providers’ Scopes of Practice: A Primer for Policymakers” (2002) 19:2 Yale J Reg 301 at 302; William Lahey & Robert Currie, “Regulatory and Medico-Legal Barriers to Interpofessional Practice” (2005) 19:sup1 J Interprofessional Care 197 at 199; Catherine Dower, Jean Moore & Margaret Langelier, “It Is Time to Restructure Health Professions Scope-of-Practice Regulations to Remove Barriers to Care” (2013) 32:11 Health Affairs 1971. 15 Medical Act, supra note 10.
6 (8) providing clinical monitoring of the condition of patients whose state of health is problematic;
(9) providing pregnancy care and conducting deliveries;
(10) making decisions as to the use of restraint measures;
(11) deciding to use isolation measures in accordance with the Act respecting health services and social services (chapter S-4.2) and the Act respecting health services and social services for Cree Native persons (chapter S-5); and
(12) administering the drug or substance allowing an end-of- life patient to obtain medical aid in dying under the Act respecting end-of-life care (chapter S-32.0001).16
It is prohibited, under section 43 of the Medical Act, for anyone other than a physician to engage in any of the above-listed reserved activities. Any person who contravenes this prohibition “is liable, for each offence, to the penalties provided in section 188 of the Professional Code.”17 The penalty for contravening this prohibition can be quite heavy, given article 188 of the Professional Code:
188. Every person who contravenes a provision of this Code, of the Act or letters patent constituting an order or of an amalgamation or integration order is guilty of an offence and is liable to a fine of not less than $1,500 nor more than $20,000 or, in the case of a legal person, of not less than $3,000 nor more than $40,000.
In the case of a subsequent offence, the minimum and maximum fines are doubled.18
Note however that this prohibition does not apply to certain persons: those engaged in a reserved activity in accordance with a regulation adopted pursuant to the Act or the Professional Code, and those who assist the sick gratuitously under special circumstances by
16 Ibid, s 31. 17 Ibid, s 45. 18 Professional Code, supra note 8, s 188.
7 reason of their duties or training.19 Furthermore, the activities reserved to physicians are granted to them “[s]ubject to the rights and privileges expressly granted by law to other professionals.”20 This limitation is present in all cases where reserved activities are granted to professionals.
The basic legal structure of the other exclusive professions is identical to that of the medical profession, as can be seen from the following examples. The dental profession is listed as an exclusive profession at section 32 of the Professional Code and is governed by its own statute—the Dental Act.21 Sections 26 and 27 of the Dental Act define the practice of dentistry and name the acts it includes. Section 38 of the Act specifies that “[s]ubject to the rights and privileges expressly granted by law to other professionals, no person may perform one of the acts described in sections 26 and 27 unless he is a dentist.” Anyone who contravenes this prohibition “is liable, for each offence, to the penalties provided in section 188 the Professional Code,”22 and this prohibition does not apply in the cases provided for by regulation adopted under the Dental Act or the Professional Code.23 The pharmacy profession is listed as an exclusive profession at section 32 of the Professional Code and is governed by its own statute—the Pharmacy Act.24 Section 17 of the Pharmacy Act defines the practice of pharmacy and lists the activities that are reserved to pharmacists. Section 35 of the Pharmacy Act prohibits anyone other than pharmacists from engaging in the activities listed at section 17— subject to rights and privileges expressly granted to other persons by law. And section 36 states that “[e]very person who contravenes section 35 is liable, for each offence, to the penalties provided in section 188 of the Professional Code.”
Professions with reserved titles are listed at article 36 of the Professional Code. As their name suggests, these professions are only granted the exclusive use of professional titles, designations and abbreviations that refer to their profession.25 Article 37 of the Professional Code does however describe professional activities that members of each of the professions with reserved titles may engage in, in addition to those otherwise allowed to them by law.
19 Medical Act, supra note 10, s 43. 20 Ibid, s 43. 21 CQLR c D-3. 22 Ibid, s 39. 23 Ibid, s 38. 24 Pharmacy Act, supra 10. 25 Professional Code, supra note 7, s 36.
8 Unlike exclusive professions, which are constituted under a profession-specific statute, professions with reserved titles are constituted under the Professional Code. 26 Similarly, regulations respecting professions with reserved titles (either general or profession-specific regulations) are adopted under the Professional Code, instead of under a profession-specific statute. For example: each profession with reserved title has its own profession-specific code of ethics adopted under the Professional Code, and each exclusive profession has its own profession-specific code of ethics adopted under its profession-specific statute. 27 The unauthorized use of reserved titles is sanctioned under article 188 of the Professional Code, discussed above.
The profession of psychology and the profession of dental hygienist are typical examples of professions with reserved titles. Under article 36(e) of the Professional Code, no one may
use the title “Psychologist” or any other title or abbreviation which may lead to the belief that he is a psychologist, or use initials which may lead to the belief that he is a psychologist, unless he holds a valid permit for that purpose and is entered on the roll of the Ordre professionnel des psychologues du Québec.28
Article 37(e) of the Professional Code states that psychologists may, in addition to the professional activities otherwise allowed to them to them by law,
assess psychological and mental functioning, and determine, recommend and carry out interventions or treatments with a view to fostering the psychological health and restoring the
26 Ibid, s 24. 27 For professions with reserved titles see e.g. Code of ethics of psychologists, CQLR c C-26, r 212; Code of ethics of physical therapists and physical rehabilitation therapists, CQLR c C-26, r 197; Code of ethics of the Ordre des orthophonistes et audiologistes du Québec, CQLR c C-26, r 184. For exclusive professions see e.g. supra note 11. 28 Professional Code, supra note 7, s 36(e). Of course the prohibition to use titles, abbreviations or initials also applies to the feminine form of the titles, abbreviations or initials that are reserved to the professions; see Professional Code, supra note 7, ss 32, para 2, 36 para 2.
9 mental health of a person in interaction with his environment.29
The same structure can be observed for the profession of dental hygienist. Under article 36(k) of the Professional Code, no one may
use the title “Dental Hygienist” or any other title or abbreviation which may lead to the belief that he is a dental hygienist, or initials which may lead to the belief that he is a dental hygienist, or the initials “D.H.”, “H.D.” or “R.D.H.”, unless he holds a valid permit for that purpose and is entered on the roll of the Ordre professionnel des hygiénistes dentaires du Québec.30
Article 37(k) of the Professional Code states that dental hygienists may, in addition to the professional activities otherwise allowed to them by law,
detect dental oral diseases, teach the principles of oral hygiene and, under a dentist's supervision, use scientific means to control and prevent dental oral ailments.31
This two-part structure—with (1) reserved titles, abbreviations and initials specified at article 36 Professional Code, and (2) professional activities that the profession may engage in described at article 37 Professional Code—applies to all of the professions with reserved titles in Quebec. It is the core legal mechanism defining professions with reserved titles.
The adoption of Bill 90, An Act to amend the Professional Code and other legislative provisions as regards the health sector32 in 2002 introduced amendments to the Professional Code that complicate the simple division between exclusive professions and professions with reserved titles described so far. A second category of profession with reserved title was created: a category that blurs some of the distinction between exclusive professions and professions with reserved titles.
29 Professional Code, ibid s 37(e). 30 Ibid, s 36(k). 31 Ibid, s 37(k). 32 2nd Sess, 36th Leg, Quebec, 2002 (assented to 14 June 2002), SQ 2002, c 33 [Bill 90].
10 Bill 90 amended the Professional Code by inserting article 37.1, which reserves a number of specific professional activities for many—but certainly not all—of the professions with reserved titles listed at article 36 of the Professional Code. These specific and reserved professional activities are part of the more general and non-exclusive33 scope of professional activities within which professions with reserved titles may engage (such as those described above in my discussion of article 37 of the Professional Code for psychologists and dental hygienists). For example: pursuant to article 37 of the Professional Code, dieticians (members of the Ordre professionnel des diététistes du Québec) may engage in the general activities of “[assessing] the nutritional status of a person and [determining] and [ensuring] the implementation of a response strategy designed to tailor diet to needs in order to maintain or restore health;”34 and article 37.1(1) of the Professional Code reserves for dieticians the specific activities of “[determining] a nutritional treatment plan, including the appropriate feeding route, where an individual prescription indicates that nutrition is a determining factor in the treatment of an illness” and “[monitoring] the nutritional status of persons whose nutritional treatment plan has been determined.”35 Psychologists have a list of ten activities reserved to them,36 whereas dental hygienists do not have reserved activities. Note that all of the professional activities reserved under article 37.1 of the Professional Code are reserved for professions with exclusive titles that work in the fields of health and social services.37
Although the distinction between the two types of professions is not as clear as it once was38 (because professions with reserved titles now have a few reserved acts of their own), the distinction remains a key feature of the professional system for at least three reasons. These three reasons are intertwined, and I only introduce them here. I further develop them throughout the rest of the text.
33 Professional Code, supra note 7, s 38. 34 Ibid, s 37(c). 35 Ibid, s 37.1(1)(a)–(b) 36 Ibid, s 37.1(1.2)(a)–(j). 37 These professions are, pursuant to article 37.1 of the Professional Code: dieticians, social workers, marriage and family therapists, psychologists, vocational guidance counsellors, psychoeducators, speech therapists and audiologists, physiotherapists, occupational therapists, auxiliary nurses, medical technologists, and respiratory therapists. 38 See e.g. René Dussault & Louis Borgeat, “La réforme des professions au Québec” (1974) 34:3 Revue du Barreau 140 at 146–147; Richard Gaudreau, “L’exerice illégal des professions et l’usurpation de titres réservés” (1983) 14:1 RGD 45 at 48–50; Pierrette Mulazzi, “L’émergence d’un nouveau regime professionnel” in Andrée Lajoie et al, Pour une approche critique du droit de la santé: Droit et matérialisation des politiques sociales (Montréal: Presses de l’Université de Montréal, 1987) 57 at 74–75.
11 First, the fact that the Professional Code distinguishes between professions based on the notion of “reserved acts” has symbolic meaning, creating a hierarchy between the professional equivalent of the “haves” and the “have-nots.” Those professions who have acts reserved to them are higher in the hierarchy than those who do not have reserved acts. In the case of exclusive professions, the word “exclusive” amplifies this symbolic hierarchy because it is a word that connotes additional prestige that is not present in the word “reserved.”39 Furthermore, exclusive professions stand out because their reserved activities tend to be more exclusive, more “their own,” which brings me to the next point.
Second, many of the acts reserved for professions with reserved titles are not truly “exclusive.” The same reserved act can be “shared,” that is: reserved for more than one profession with reserved title.40 Furthermore, the reserved acts of many exclusive professions tend to be broader, more “robust”—especially in the case of medicine and dentistry.41 By “robust” I mean that the broader reserved acts of many exclusive professions are more adaptable to changing circumstances such as: demand for new types of services, new developments in science and technology, or changes in organizational structure within an organization. A professional with only narrow reserved acts—or, even worst, only a reserved title—can be made redundant more easily than one with broader reserved acts because it is more difficult to do away with the latter in an organizational setting.42 Indeed, as mentioned above,43 reserved activities are always granted subject to the rights and privileges granted by law to other professions. Professions—usually exclusive professions—that are granted broader privileges by law are the ones that benefit from this limit on reserved acts, since
39 OED, supra note 5 sub verbo “exclusive” (“catering for or available only to a few, select customers; high class and expensive”). 40 Compare e.g. Professional Code, supra note 7, ss 37.1(1.2)(a), (g) and 37.1(1.3.1)(a), (d) and 37.1(1.3.2)(a), (e); compare also Professional Code ss 37.1(3)(b), (c), (d) and 37.1(4)(a), (c), (d); compare also Professional Code ss 37.1(1.3.1)(a), (d) and 37.1(1.3.2)(a), (e). See Villeneuve, Dubé & Hobday, supra note 8 at 113. 41 Indeed, the reserved acts granted to professions with reserved titles (at Professional Code, ibid, s 37.1) tend to be quite narrow and technically specific. This more narrow, technical scope of their reserved activities is especially apparent when the reserved activities of article 37.1 of the Professional Code are read in conjunction with the other activities that professions with reserved titles “may engage in” described at article 37 of the Professional Code. 42 See e.g. Julien Prud’homme, Professions à part entière: Histoire des ergothérapeutes, orthophonistes, physiothérapeutes, psychologues et travailleuses sociales au Québec (Montréal: Presses de l’Université de Montréal, 2011) at 71–74, 81–83 [Prud’homme, Professions à part entière] (regarding the tension between recognized but fledgling professions and less qualified “assistants” or “technicians,” as well as the tendency of employers and unions to allocate professional tasks to non-professional workers and giving the workers titles not reserved by law). 43 See supra note 21 and accompanying text.
12 their broader reserved acts can sometimes “trump” or “swallow” the exclusive act of a profession with narrower reserved acts. In other words: members of professions with broader reserved acts can perform acts reserved to professions with narrower reserved acts when they fall into the former professions’ broader “jurisdiction.”
These dynamics create and maintain the hierarchy between many exclusive professions and professions with reserved titles—regardless of whether the latter have activities reserved to them—and demonstrate the importance of the notion of reserved acts and the distinction between exclusive professions and reserved titles. The hierarchy between professions is especially strong in the case of the medical profession, which is at the hierarchy’s pinnacle and has no true rival.44 Note that a hierarchy of reserved acts is also present between some professions with reserved titles. For example: psychologists can simply “assess mental disorders” (it is an act reserved to them), whereas vocational guidance counsellors may only engage in this reserved act if they have been issued a training certificate pursuant to a regulation adopted under the Professional Code.45
Third, reserved acts have a significant impact on the organization of work in the healthcare system because they create demand within the healthcare system for professions who can perform exclusive or reserved acts (insofar that there is a need for the acts in question to be performed, of course). The greater the need—or political pressure—for the exclusive of reserved acts to be available to the public via the public healthcare system, the greater the demand for the professions that can perform the reserved acts in question. This interacts in part with the dynamics described in the preceding paragraph regarding the relative breadth of the reserved acts: the broader the reserved acts, the greater the chances that there will be more demand for the professionals who can legally perform those acts. Therefore, by creating (or at least favouring) demand for certain professions over others, the reserved acts of the professional system create (or at least encourage) certain types of work structures within the healthcare system.
44 See e.g. Barbara J Safriet, supra note 14 at 305–308. 45 Professional Code, supra note 7, s 37.1(1.2)(b), (1.3.1)(b). Note as well that psychotherapist’s permits are delivered to vocational guidance counsellors by the Order of psychologists, further affirming the hierarchy between these two professions; see Professional Code, supra note 7, s 187.3; Regulation respecting the psychotherapist’s permit, CQLR c C-26, r 222.1, s 1.
13 ii. Institutional Structure
Quebec’s professional system is governed by three main institutions: (i) the professional orders that regulate the professions, (ii) the Office des professions du Québec, and (iii) the Conseil interprofessionnel du Québec (Interprofessional Council). The Professional Code— including, in the case of exclusive professions, their respective statutes—governs the creation, mission and overall structure of these institutions, the key elements of which I describe below.46
Professional orders are legal persons distinct from their members, constituted either by (i) a specific Act, (ii) the Professional Code or (iii) by letters patent issued under the Professional Code.47 The constitution of professional orders reflects the symbolic hierarchy described above (in which exclusive professions are “higher” than professions with reserved titles), because exclusive professions have “their own” specific Act,48 whereas professions with reserved titles are constituted by the Professional Code or under letters patent issued under it.49 Furthermore, in some cases, different professions with reserved titles are grouped within the same order. For example: members of the profession of social worker and the profession of marriage and family therapist are both part of the Ordre professionnel des travailleurs sociaux et des thérapeutes conjuguaux et familiaux du Québec; members of the profession of vocational guidance counsellor and the profession of psychoeducator were, until 2010,50 part of the Ordre professionnel des conseillers et conseillères d’orientation et des psychoéducateurs et psychoéducatrices du
46 Note that a Bill currently under consideration could amend or repeal some of the provisions referenced below: Bill 98, An Act to amend various legislation mainly with respect to admission to professions and the governance of the professional system, 1st Sess, 41st Leg, Quebec, 2016 (introduced 11 May 2016). If adopted, this Bill will amend the Professional Code, as well as a number of exclusive professions’ statutes, namely the Medical Act, Nurses Act, Pharmacy Act, and Dental Act. However, the Bill’s current form does not fundamentally modify the professional system’s institutional structure and the key elements described below. The discussion below should therefore— depending on the Bill’s final form when and if adopted—remain valid beyond the Bill’s adoption, even though certain articles and sections referred to below may be amended or repealed. 47 Professional Code, supra note 7, ss 25, 28. 48 Ibid, ss 32, 36 and Schedule I. 49 Ibid, ss 24, 36 and Schedule I. 50 In 2010 the Ordre professionnel des conseillers et conseillères d’orientation et des psychoéducateurs et psychoéducatrices du Québec was renamed as the Ordre professionnel des conseillers et conseillères d’orientation du Québec, pursuant to the Regulation respecting the withdrawal of psychoeducators from the Ordre professionnel des conseillers et conseillères d'orientation et des psychoéducateurs et psychoéducatrices du Québec, CQLR c C-26, r 77. Members of this Order who were holders of a psychoeducator’s permit were withdrawn from the Order and transferred to the newly constituted Ordre professionnel des psychoéducateurs et psychoéducatrices du Québec, constituted under the Letters patent of the Ordre professionnel des psychoéducateurs et psychoéducatrices du Québec, CQLR c C-26, r 208.
14 Québec. 51 This reflects the often awkward relationship between many professions with reserved titles: the boundaries between their respective turfs are unclear (or not as clearly bounded as those of exclusive professions), often causing friction and making collaboration and cohabitation difficult.52
Professional orders’ primary mission is to protect the public.53 In order to accomplish this mission they perform two fundamental functions. First, they control and supervise professional competence, standards of practice and ethics. 54 They accomplish this via professional inspection and professional discipline, both of which are considered to protect the public.55 Orders’ duty to supervise professional practice is described as “fundamental” by the Supreme Court of Canada. 56 Second, professional orders police the borders of their profession’s reserved activities: they make sure non-members of their profession do not engage in its exclusive activities, usurp the profession’s reserved titles, or both. 57 In order to enforce their exclusivity of action and designation, orders have the power to introduce penal proceedings against illegal practice or usurpation of title.58
The Office des professions du Québec (hereafter: “Office des professions” or “Office”) exercises both supervisory and regulatory functions. Its main function is to “see that each order ensures the protection of the public.”59 It must, for example: examine the regulations adopted by professional orders to ensure that they conform to the Professional Code or other applicable legislation, advise the government on various matters related to the professional system, and inform the public of its rights and recourses under the Professional Code.60 Of particular importance is the Office’s role in advising the Government on the constitution
51 Professional Code, supra note 7, ss 37(d), 37(g), 37.1(1.1), 37.1(1.3). 52 See generally Prud’homme, Professions à part entière, supra note 42 at 145ff. 53 Professional Code, supra note 7, s 23. 54 Villeneuve, Dubé & Hobday, supra note 8 at 19–21; Gaétane Desharnais, La professionalization: entre la protection du public et l’intérêt des professionnels (Cowansville: Yvon Blais, 2008) at 15. 55 Finney c Barreau du Québec, 2004 SCC 36, [2004] 2 SCR 17 at para 18; Villeneuve, Dubé & Hobday, ibid at 19. 56 Finney, ibid at paras 28, 40, 45. See also Villeneuve, Dubé & Hobday, ibid at 58, 66–67, 88, 95 (control of professional standards and enforcement of professional discipline are orders’ most important functions; they are at the heart of orders’ mission to protect the public). 57 Villeneuve, Dubé & Hobday, ibid at 18, 130. 58 Professional Code, supra note 7, ss 32, 36, 37.2, 188, 188.1, 188.1.1, 188.1.2; Villeneuve, Dubé & Hobday, ibid at 339. See also e.g. Medical Act, supra note 10, ss 31, 43, 45; Nurses Act, supra note 10, ss 36, 41, 42; Podiatry Act, supra note 10, ss 7, 8, 16, 17. 59 Professional Code, ibid, s 12. 60 Ibid. See also Villeneuve, Dubé & Hobday, supra note 8 at 11–17.
15 and the amalgamation of professional orders of professions with reserved titles.61 The Office is also empowered to adopt certain specific types of regulations,62 and contributes to the internal governance of professional orders—for example: by appointing a number of the directors that sit on each order’s Board of directors.63
The Québec Interprofessional Council (hereafter: “Interprofessional Council”) is a legal person that acts as an advisory body to the minister responsible for the professional system. 64 The Interprofessional Council is composed of—and financed by—all the professional orders, and each order is represented on the Council by the orders’ president or another member of the order designated by the order’s board of directors. 65 The Interprofessional Council has no direct power in the professional system. It is simply the “collective voice” of the professional orders.66 Its advisory functions include, for example: contributing to the selection of the members of the Office des professions,67 acting as consultant to the Office des professions for regulations to be adopted by this Office,68 and advising the minister responsible for the professional system.69
Of course the professional system is governed by other institutions, a few of which I briefly mention here. I mention these institutions to further illustrate the extent to which Quebec’s professional law constitutes a complete, integrated system of institutions—“a set of things working together as part of a mechanism or an interconnecting network; a complex whole.”70
Each professional order contains a number of institutions that are important in their own right. One of these institutions is the disciplinary council, 71 which adjudicates complaints made against professionals for offences to the Professional Code, “the Act
61 Professional Code, supra note 7, ss 27, 27.2. 62 See e.g. Pharmacy Act, supra note 10, ss 37, 38; Podiatry Act, supra note 10, s 12; 63 See e.g. Medical Act, supra note 10, s 7; Dental Act, supra note 21, s 7; Pharmacy Act, supra note 10, s 5; Nurses Act, supra note 10 s 6; Professional Code, supra note 7, s 78. 64 See generally Professional Code, ibid, s 17ff. 65 Ibid, ss 20, 21. See also Villeneuve, Dubé & Hobday, supra note 8 at 17. 66 Desharnais, supra note 54 at 15, n 44. 67 Professional Code, supra note 7, s 4. 68 Ibid, ss 12(6), 12.3. 69 Ibid, s 19.1. 70 OED, supra note 5 sub verbo “system”. 71 See Professional Code, supra note 7, s 116ff.
16 constituting the order of which [they] are a member or the regulations made under [the Professional Code] or that Act”.72 Another such institution is the syndic,73 who has the power to both investigate the members of its order and lodge complaints against those members before their disciplinary council.74
Two other “unique” institutions—unique in the sense that there is only one of them (like the Office des professions and the Interprofessional Council) as opposed to one within each professional order—deserve brief mention here: the Government and the Professions Tribunal. The Government performs many important executive and legislative functions within the professional system, for example: naming the Office des professions’ members,75 adopting various regulations and by-laws for the professional system,76 constituting new professional orders,77 amalgamating existing professional orders,78 ordering the audit of a professional order’s accounts,79 and setting the travel and lodging expenses that disciplinary council members may claim for their professional order.80 The Professions Tribunal is established by the Professional Code and composed of eleven judges of Quebec’s provincial court (Cour du Québec).81 It mainly exercises appellate jurisdiction over decisions rendered by professional orders’ disciplinary councils,82 but also hears appeals for a number of other decisions taken by various institutions within the professional system. 83 Note that the Professions Tribunal is an administrative tribunal distinct from the Cour du Québec, even though it is composed of judges from that Court.84
72 Ibid, s 116. 73 See ibid, s 121ff. 74 See Villeneuve, Dubé & Hobday, supra note 8 at 151ff. 75 Professional Code, supra note 7, s 4. 76 See generally ibid, ss 12(2), 12(4), 13, 27, 117.2, 183–184.1 Professional Code. 77 Ibid, s 27. 78 Ibid, s 27.2. 79 Ibid, s 107. 80 Ibid, s 117.1. 81 Ibid, s 163–177.1 Professional Code. For a general discussion of the Professions Tribunal see Pierre Issalys, “The Professions Tribunal and the Control of Ethical Conduct Among Professionals” (1978) 24:4 McGill LJ 588 at at 600, 610ff. 82 Villeneuve, Dubé & Hobday, supra note 8 at 277; Issalys, ibid at 612. 83 See generally Professional Code, supra note 7, 182.1ff; Issalys, ibid at 612–613. 84 Daniel W. Payette, “L’appel et la révision judiciaire en matière disciplinaire en 2006” in Service de formation permanente du Barreau du Québec, Développements récents en déontologie, droit professionnel et disciplinaire, vol 137 (Cowansville: Yvon Blais, 2006) 31 at 51–52.
17 §C. CONCLUSION TO CHAPTER 1
I close this overview of Quebec’s professional system with the following observations. First, the professional system is structured around two central notions: protection of the public and exclusivity.
Protection of the public is central because protecting the public is the primary, official mission of professional orders and the Office des professions.85 The Professional Code, case law, and doctrine are explicit on this point: laws regulating the professions protect the public, the public interest, and are of public order.86 Furthermore, as discussed below, protection of the public played a key part in the official discourse that preceded the Professional Code’s adoption.
Exclusivity—of action, of title, or both—is just as central: all professions have exclusivity of title, and exclusivity of action in certain areas remains a central organizing principle, especially with respect to healthcare professions, despite the fact the distinction between the two types of professions (exclusive and reserved title) was relaxed in 2002. Indeed, in order to properly control and supervise professional competence, standards of practice and ethics, orders must control access to the profession. Access is controlled in two ways. First, by ensuring that professionals meet and maintain certain standards of education, competence, practice and probity in order to be admitted and remain members of the profession. Second, by ensuring that non-members of the profession do not engage in exclusive activities or usurp professional titles.87
These two notions—protection of the public and exclusivity of action and title—are therefore intertwined. This is especially true in the case of exclusive professions’ exclusivity of action: the Professional Code stipulates that “the exclusive right to practice a profession” must only be granted in cases where the nature of activities requires that they be granted exclusively in order to protect the public.88 In other words, the state grants professional orders a monopoly, and in exchange they must take on the duty of protecting the public, a
85 Professional Code, supra note 7, ss 12, 23, 26, 27.2. 86 See Fortin v Chrétien, 2001 SCC 45, [2001] 2 SCR 500 at paras 11, 13, 21–22. 87 See Desharnais, supra note 54 at 55-56, 66–70. 88 Professional Code, supra note 7, s 26; Ordre des comptables généraux licenciés du Québec c. Québec (PG), [2001] RJQ 1919, AZ-50098710, 2001 CanLII 24658 (QC CS), at 143.
18 duty for which they are delegated state regulatory powers.89 Professional monopolies are a privilege, a benefit for a “limited group within society,” but the granting of this privilege is ostensibly justified in the name of the public good.90
Finally, the professional system and the healthcare system are both (i) intimately connected and (ii) central institutions in Quebec society. They are intimately connected because the healthcare system employs more professionals than any other sector of society, both in terms of number of professionals as well as number of different professions.91 Furthermore, as mentioned above, the professional system structures the organization of work—and therefore the public’s access to professional services—within the healthcare system.92
The professional and healthcare systems are central because of the importance that healthcare plays in Quebec society and politics. Regarding the healthcare system, a quick glance at the Quebec government’s spending on healthcare makes its centrality obvious: healthcare, including social services, represents almost half of the province’s total government program spending budget, almost double what is spent on education, which is the province’s next biggest spending program.93 As for the professional system, its centrality is tied to that of the healthcare system, for example: in terms of remuneration, physicians alone represent almost ten percent of Quebec’s total government program spending budget—or approximately one fifth of the total healthcare budget.94 The history of these two
89 Villeneuve, Dubé & Hobday, supra note 8 at 18, 115–116; Fortin, supra note 86 at paras 11, 13. 90 Fortin, ibid at para 22. 91 Villeneuve, Dubé & Hobday, supra note 8 at 146. This has been the case since at least the late 1960s; see e.g. Commission d’enquête sur la santé et le bien-être social, Les professions et la société: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume VII tome I (Québec: Éditeur officiel du Québec, 1970) at 10 [CNC Report Volume VII]. See generally Gilles Dussault & Carl-Ardy Dubois, “Les personnels de la santé: Bénéficiaires ou victimes des changements dans le système de soins” in Vincent Lemieux et al, eds, Le système de santé au Québec: Organisations, acteurs, enjeux (Québec: Presses de l’Université Laval, 2003) 229. 92 See e.g. Conseil Interprofessionnel du Québec, Newsletter, ISSN-1201-852X, “Info Express: Bulletin d’information du Conseil interprofessionnel du Québec: Été 2008” (Summer 2008), at 8 (at the time, the Interprofessional Council envisaged the professional system as an important element in solving problems related to the workforce and access to professional services). 93Gouvernement du Québec, “Budget de dépenses 2015–2016: Renseignements supplémentaires” (Québec: Gouvernement du Québec, 2015) at 9–10, 13 (health and social services spending represent approximately 32.85 billion dollars out of a total program spending budget of approximately 66.46 billion dollars). 94 Vérificateur général du Québec, “Rapport du Vérificateur general du Québec à l’Assemblée nationale pour les années 2015–2016: Vérification de l’optimisation des Ressources: Automne 2015: Chapitre 2: Rémunération des médecins: conception et suivi des ententes” (Québec: Vérificateur général du Québec, 2015) at 7 (the province paid 6.281 billion dollars to physicians: 3.986 billion for specialists and 2.295 for generalists).
19 systems, discussed in the next Chapter, makes the interconnection of these two systems even more apparent.
20 CHAPTER 2. HISTORY OF THE PROFESSIONAL SYSTEM
In this Chapter I lay further groundwork for my critique by exposing the history of the professional and healthcare systems. I begin (in §A) by explaining the rationale behind my use of historical sources, a rationale that can be summed up as follows: history offers a uniquely valuable perspective from which to analyse and understand issues in healthcare law and policy, such as interprofessional care.
In Section B, I discuss the general historical context within which the professional system and healthcare system were created, and show how the two systems are historically intertwined. I make no claim to giving a fully detailed exposé of the historical context—such an exercise would require a book all to itself. Therefore, my historical narrative focuses on the key elements that should be kept in mind when analysing the professional and healthcare systems. I acknowledge immediately that the main shortfall of my narrative is that it only discusses Quebec, whereas social and political movements affecting healthcare delivery were simultaneously occurring across Canada. Cross-pollination of ideas and initiatives no doubt played a part in the historical evolution of Quebec’s system, and my narrative overlooks these dynamics. But Quebec did nonetheless have—and continues to have—a distinct dynamic. It is therefore reasonable to focus exclusively on Quebec, even though it may not be ideal from a historiographical perspective.
In Section C I narrow the focus and discuss the emergence of the healthcare system and professional system following the work of the Commission sur la santé et le bien-être social, better known as the Castonguay-Nepveu Commission. More specifically: I analyse the “official discourse” 95 generated by this Commission. I adopt a method based in the complementary theories of Michel Foucault, on one hand, and Frank Burton and Pat Carlen on the other.
For Michel Foucault, law needs to be justified in a “discourse of truth”—a discourse grounded in sociological, psychological, medical or other form of knowledge that erases the knowing subject, one that can be expressed in terms of what is “neutrally” (some would say
95 Frank Burton & Pat Carlen, “Official Discourse: On Discourse Analysis, Government Publications, Ideology and the State” (London: Routledge & Kegan Paul, 1979) [Burton & Carlen 1979].
21 “objectively”) observable, measurable, classifiable.96 Such discourse, once established and given institutional support, serves as a basis for new forms of discourse. These new forms recycle and reshape their founding discourse. Foucault cites legal texts as examples of such founding discourse.97 This aligns with Burton and Carlen’s thought, for whom parliamentary commissions are a privileged mode of discourse creation—examples of one the kinds of procedures through which Foucault would say that discourse is produced, selected, organized and redistributed. 98 According to Burton and Carlen, commission members typically possess high levels of expertise in the area under inquiry, which reinforces their claim to legitimacy, impartiality and disinterestedness.99 Their discourse is “official” both because it is the end result of a government-mandated effort and because it is contained in printed reports that are published by the state. 100 Parliamentary commissions, and the discourse they produce, are ways of repairing crises of legitimacy while allowing the state to “replenish official arguments with both established and novel modes of knowing and forms of reasoning.”101 As I show below, the Castonguay-Nepveu Commission’s Report possesses all of these features.
My objective in analysing the Castonguay-Nepveu Commission’s discourse, then, is to expose key ideas underpinning this discourse in order to examine the “modes of knowing” that it establishes. 102 These modes of knowing, I argue, relate to how we understand professional law: its purposes and possibilities. If “[p]olicy-making is strewn with dubious historical analogies and powerful myths”103—myths created through discourse— then I seek to shed light on some of those myths in the hope of helping us “avoid the pitfalls of thinking too narrowly about the present.”104
96 Michel Foucault, “L’ordre du discours” in Frédéric Gros et al, eds, Michel Foucault: Oeuvres, t 2 (Paris: Gallimard, 2015) 225 at 232–233. 97 Ibid at 234. 98 Ibid at 228–229. 99 Burton & Carlen 1979, supra note 95 at 2. 100 Ibid. 101 Ibid. at 7–8. 102 Ibid at 13. 103 Rosemary A Stevens, “Introduction” in Rosemary A Stevens, Charles E Rosenberg & Lawton R Burns, eds, History and Health Policy in the United States: Putting the Past Back In (Piscataway, NJ: Rutgers University Press, 2006) 1 at 1. 104 Ibid.
22 §A. WHY HISTORY MATTERS
History can be very valuable in the context of debates over healthcare law and policy for two interrelated reasons. First, just as history can be valuable to gain a better understanding of a society’s institutions by placing them in greater context,105 history can be of general use in matters of policy by helping to produce new interpretations of contemporary issues and debates in policy.106 Indeed, by chronicling the arguments and evidence brought forward in favour of past reforms, history “sheds light on present and future debates” by clarifying their terms and by helping to distinguish “the new and original from the old and the stale.” 107 At a minimum, history allows us to gain a better understanding of “what has changed or not changed in terms of interests, institutions, actors, and attitudes.”108
Second, history is particularly useful to the analysis and debate of policy because of the very nature of policy. Charles E. Rosenberg, a historian of medicine and science, writes that policy is characterized by “structured contingency,” 109 which can be described as follows:
One of the characteristics of policy is what might be called its cumulative, developmental, or process aspect: each decision and its consequences interact over time to define a new yet historically structured reality, often one not anticipated by most contemporary actors. The system moves through visible
105 See e.g. Julien Prud’homme, “De la Commission Parent aux réformes de la santé et au Code des professions, 1961-1974” (2012) 53:1 Recherches Sociographiques 83 at 86 [Prud’homme, “Parent”] (the greater our understanding of the history—political, sociological or legal—of established social institutions, the richer our contemporary understanding of, and debates over, those institutions will be); Benoît Gaumer, Le système de santé et des services sociaux du Québec: Une histoire récente et tourmenté: 1921-2006 (Québec: Presses de l’Université Laval, 2008) at 3 (a society’s past experiences and missed opportunities shape its “collective unconscious”). 106 Heather MacDougall, “A New Prescription: Adding Historical Analysis to Health Policy” in Rosemary A Stevens, Charles E Rosenberg & Lawton R Burns, eds, Putting the Past Back In: History and Health Policy in the United States (Piscataway, NJ: Rutgers University Press, 2006) 295 at 295. 107 Gregory P Marchildon, “Canadian Medicare: Why History Matters” in Gregory P Marchildon, ed, Making Medicare: New Perspectives on the History of Medicare in Canada (Toronto: University of Toronto Press, 2012) 3 at 3– 4. 108 Ibid at 3. 109 Charles E Rosenberg, “Anticipated Consequences: Historians, History and Health Policy” in Rosemary A Stevens, Charles E Rosenberg & Lawton R Burns, eds, History and Health Policy in the United States: Putting the Past Back In (Piscataway, NJ: Rutgers University Press, 2006) 13 at 13, 28.
23 decision points, elaborated by subsequent administrative practices—with that specific experience along with other relevant variables shaping the next visible shift in public policy. All are linked in a context of periodic confrontation, negotiation and renegotiation.110
Rosenberg writes further:
Policy is always history. Events in the past define the possible and the desirable, set tasks, and define rewards, viable choices, and thus the range of possible outcomes. As we move though time those choices reconfigure themselves and trends may establish themselves—but at any given point the “actionable” options are highly structured.111
I insist on the fact that history is valuable to gain a better understanding of policy for the following reason. I explained above (Chapter 1 §C) that the professional system and healthcare system are central institutions in Quebec society. Being institutions central to Quebec society, the healthcare system and the professional system are the locus of seemingly endless debates in which almost everyone has an opinion. One need only casually follow the news to come across a number of these debates, many of which revolve around the cost of healthcare to society, lack of access to healthcare professionals, physicians’ compensation, and the orientation of government resources for the systems’ future development. Fundamentally, these debates are all health policy debates—debates over “general principles by which a government is guided in its management of public affairs,”112 debates that “turn on inevitably contested questions of legitimate authority and the balancing of available resources and social priorities.”113
Just as history can enrich our understanding of policy, it can enrich our understanding of law. History “can give a sense of the contingency and the indeterminacy of law and provide a valuable check on assumptions about the universality or permanency of
110 Ibid at 20. 111 Ibid at 28–29. 112 Black’s Law Dictionary, 8th ed, sub verbo “policy”. See also OED, supra note 5 sub verbo “policy” (“a course or principle of action adopted or proposed by an organization or individual”). 113 Rosenberg, supra note 109 at 25.
24 current institutional and doctrinal arrangements.”114 Furthermore, examining law in historical context can “have an unsettling effect on current understandings” and “expose errors in current thinking . . . or provide cause to question analytical models.”115 In any case, it is impossible to draw a clear line between policy and law, for ultimately, policy and law are woven together in an intimate web:
The histories of law, legal institutions and processes are an essential part of social, political, economic and cultural histories. Investigating the place of law in this broader context seldom, if ever, yields a clear picture of cause and effect, but it does illustrate how important a role law played in regulating diverse areas of social activity.116
The study of history, then, is relevant to gaining a better understanding of both policy and law.
So far I have argued that history is useful to gain a better understanding of both (i) a society and its institutions in general, and (i) debates over policy and law in general. I conclude this section by pointing out two interrelated reasons why debates over policy and law concerning healthcare in particular merit historical attention. The first reason relates to the complexity of “medicine” qua institution in contemporary Quebec (and most other modern industrialized societies), as well as medicine’s quasi-ubiquitous and controlling power in all matters related to “health.” The second reason relates to what Rosenberg calls the “persistence of structured conflicts” within healthcare, and the relevance of these conflicts with respect to interprofessional care.
Regarding the first reason: medicine is a powerful and complex institution, one whose power and complexity take root in different (and sometimes conflicting) sources of authority. Medicine is powerful because it “claims unique, exclusive, and absolute knowledge about the body in sickness and health, knowledge that is universally valid and ostensibly
114 Philip Handler, “Legal History” in Dawn Watkins & Mandy Burton, eds, Research Methods in Law, (Routledge: 2013) 85 at 95. 115 Ibid. 116 Ibid.
25 independent of cultural or social constraints or meaning.”117 Medicine is complex because its traditional identifications with the sacred, the selfless and the public interest, have “over time blurred and hybridized with the intellectual, the technical, and the instrumental. The merging of these diverse sources of authority has obscured areas of inconsistency and conflict.”118
If they remain unaddressed, these inconsistencies and conflicts can continue to fuel contemporary debates over health law and policy, all the while obfuscating the inconsistencies and conflicts that are the root causes of the problems at the heart of these debates. If “the debates that characterize medicine today often reiterate historical arguments,”119 then knowing more about medicine’s history helps to shed important light on these debates. Learning that a debate is in fact not new is information that can—even when taken alone—significantly alter our awareness of the types of policies that may or may not have realistic chances of success.
Regarding the second reason: Rosenberg argues that healthcare is characterized by the “persistence of structured conflicts” 120 —conflicts that are built into the fabric of healthcare and that may possibly never be resolved. Such conflicts are partly due to the complexity and size of the healthcare system, as well as the cumulative effect of innumerable ad hoc decision that contributed to shape the healthcare system over time. “These conflicts are at once products, constituents, and predictors of history,” and will continue to shape healthcare policy and law for years to come.121
Rosenberg identifies three persistent structured conflicts that are of particular relevance to interprofessional care. The first such conflict is that of boundary identification, that is: the constant process of identifying the place where one healthcare issue ends and another issue begins. In the context of the healthcare professions, this conflict is in debates over where medicine stops and something else—be it a discipline, jurisdiction, occupation or profession—begins.122 As I discuss below, this conflict goes to the heart of interprofessional care and the viability of policy or law that aims to increase interprofessional care within the
117 Roberta Bivins, Alternative Medicine? A History (Oxford: Oxford University Press, 2007) at 4. 118 Rosenberg, supra note 109 at 17–18. 119 Bivins, supra note 117 at 3. 120 Rosenberg, supra note 109 at 22. 121 Ibid at 22–23. 122 Ibid at 23, 25–26.
26 healthcare system. Indeed, I identify this act of drawing boundaries within healthcare— where care is something that is (or least should be) understood and practiced as a holistic act—as being deleterious the full integration of interprofessional care in the healthcare system.
The second structured conflict relates to the different “problems associated with decentred and fragmented loci of power.”123 Power within the healthcare system is held and exercised by a number of different actors. For example: the government is only one locus of power, albeit a very important one; the various professional orders that regulate the numerous professions working within the healthcare system represent multiple loci of power; and professional associations or unions who work to advocate for different professional or occupational groups’ interests (usually working conditions and benefits) represent yet another set of loci of power. Many if not most of these actors have divergent, or at least not totally convergent, interests and priorities. Reconciling these interests is a continuous, never-ending process, and policies and laws regarding issues like interprofessional care inevitably require such reconciliation.
The third structured conflict relates to the “way in which medicine as a fundamental social function reflects, incorporates, and acts out more general aspects of social hierarchy, status and power.”124 This conflict is related to the power and complexity of medicine as an institution. Indeed, Rosenberg argues that there are very different sorts of powers that shape physicians’ practice, powers that reside scientific, intellectual, bureaucratic, administrative, economic, political and legal institutions.125 Issues of social hierarchy, status and power are constantly at play in and through the institution of medicine. This has repercussions on the healthcare system as a whole, as well as a significant part of professional system, and even society as a whole (given that the healthcare and professional systems are central institutions in Quebec society). Recognizing the existence of this structured conflict is important, because it draws attention to the fact that questions of social hierarchy, status and power cannot be pushed aside. As I discuss below, these questions must be considered in the context of interprofessional care.
123 Ibid at 23. 124 Ibid at 23. 125 Ibid at 27–28.
27 Having established the importance of history to the study of health law and policy, I now turn to the history of Quebec’s professional system and healthcare system, beginning with the general historical context in which these systems came to be.
§B. THE GENERAL HISTORICAL CONTEXT
Both the healthcare system and the professional system are the product of the “Quiet Revolution,” a period of significant social, cultural, demographic and economic change that swept through Quebec. The peak of this period occurred during the 1960s; the election of Jean Lesage’s Liberals to power in June 1960 is often cited as a key historical turning point marking the beginning of the Quiet Revolution.126 Although the changes ushered in by the Lesage government were significant, the years leading up to this government were crucial in preparing the ground for the upheaval that would take place during the 1960s and early 1970s.127
The two decades leading up to 1960 were a period of drastic demographic and sociocultural change in Quebec. The total population almost doubled between 1941 and 1961, and the proportion of young people within the population exploded. The population also urbanized very rapidly.128 During the same period, significant sociocultural changes accompanied these demographic changes. 129 Most notable was the decline of Catholic Church’s influence, beginning in the 1940s130 and culminating in a period of increasingly rapid secularization between 1950 and 1970.131
126 Paul-André Linteau, “Quebec Since Confederation” in The Canadian Encyclopedia, year 2000 ed by James H Marsh (Toronto: McCleland & Stewart, 2000); René Durocher, “Quiet Revolution” in The Canadian Encyclopedia, year 2000 ed by James H Marsh (Toronto: McCleland & Stewart, 2000); Gaumer, supra note 105 at 73–78; John Dickinson & Brian J Young, A Short History of Quebec, 3rd ed (Montreal: McGill-Queen’s University Press, 2003) at 336. 127 See Paul-André Linteau et al, Histoire du Québec contemporain: Le Québec depuis 1930 (Montréal: Boréal, 1986) (for a general history of Quebec in the years leading up to the Quiet Revolution as well as the revolution itself). 128 Dickinson & Young, supra note 126 at 318. See also Linteau et al, ibid at 493ff (on the increase of urbanization in the 1960s). 129 Royal Commission on the Economic Union and Development Prospects for Canada, Report, vol 3 (Ottawa: Minister of Supply and Services, 1985) at 329–330. 130 Dickinson & Young, supra note 126 at 318; Linteau et al, supra note 127 at 589ff. 131 Gaumer, supra note 105 at 75.
28 All these changes in Quebec society put significant pressure on existing education and healthcare services.132 In tandem with the “dramatic decrease in religious practice [came] the state’s progressive assumption of education and healthcare, beginning with the election of the Lesage government.”133 As a result, “[r]eligious domination of education and culture withered in the 1960s as Quebec looked increasingly to the state as the defender of national life.” 134 The new Quebec francophone intellectual elite135 that came to power in Quebec City and Ottawa during this time “rejected traditional Catholic values in favour of secularism and statism.” 136 Starting with the Lesage government, who dramatically increased the size of the public sector, 137 this new francophone elite “accelerated the modernization, bureaucratization, and influence of the state, and built structures to cope with the demands of mass education and the welfare state.”138
It may come as no surprise, then, that the Quiet Revolution is described as a period that “radically changed Quebec society and politics,”139 a period out of which Quebec emerged fundamentally transformed.140 Thirty years after the Revolution’s end, historians John A. Dickinson and Brian Young write: “the 1960s and 1970s were a period of rapid change in Quebec as institutions and attitudes were swept away, transforming state, economy, family and society.”141
Such descriptions may overstate the extent of the transformation of Quebec society that took place at the time. Some historians argue that it would be preferable to describe the Quiet Revolution as an “organic evolution” rather than “a radical break with the past.”142 But even these historians do not deny that the Quiet Revolution occurred, that Quebec society changed during this period, and that this change was in large part driven by the state and a
132 Ibid at 73. 133 Dickinson & Young, supra note 126 at 336. 134 Ibid at 336. 135 See generally Linteau et al, supra note 127 at 513–520. 136 Dickinson & Young, supra note 126 at 305. 137 Ibid at 320. 138 Ibid at 305. See also Linteau et al, supra note 127 at 579ff (on the rise of the welfare state in Quebec). 139 Dickinson & Young, supra note 126 at 318. 140 Royal Commission on the Economic Union, supra note 129 at 329. 141 Dickinson & Young, supra note 126 at 305. 142 Donald Cuccioletta & Martin Lubin, “The Quiet Revolution: A Noisy Evolution” (2003) 36 Quebec Studies 125 at 135.
29 new technocratic class that understood the pivotal role that the state could play in keeping Quebec “competitive with the rest of North America.”143
Along with the social, cultural, political and economic transformation of Quebec society just described came profound changes to Quebec’s medical institutions (be they professional, educational or political), both in the years leading up to the Quiet Revolution and during the Revolution itself. A significant part of this transformation can be attributed to the state taking on the role of principal authority in matters of health and social services. Other transformations occurred as a result of socio-political movements, labour movements, and scientific and technological advancement. 144
Quebec’s hospital network changed significantly due to the state’s increased involvement in its affairs. The patient population and number of hospitals increased, first due to the introduction of state-funded hospital insurance in 1961145 and then due to the introduction of public health insurance—Quebec’s “healthcare system” as it is known today—in 1970. Physicians and hospitals administrators were also forced to adapt to a new reality: that of dealing with the state’s technocrats and other representatives. The Catholic Church—a hugely influential force in the development of Quebec’s hospital network for over a century—was essentially pushed out of hospitals across the province as the state took over their administration.146
143 Ibid at 135–136. 144 See generally Denis Goulet & Robert Gagnon, Histoire de la médecine au Québec: 1800–2000: De l’art de soigner à la science de guérir (Québec: Septentrion, 2014); Denis Goulet, Histoire du Collège des médecins du Québec: 1847–1997 (Montréal: Collège des Médecins du Québec, 1997) at 108–166; Gaumer, supra note 105 at 73ff. 145 Up until then the cost of hospitalization had to be borne by the patient or her private insurer, and the cost of private medical insurance was so prohibitive that only 30% of the population could afford it in 1961; Goulet & Gagnon, ibid at 168. See also Gaumer, ibid at 94–97 (private health insurance coverage was weak in Quebec at the beginning of the 1960s, and the advent of hospitalization insurance increased the tendency, both within the population and the medical profession, to have recourse to hospital care); Prud’homme, Professions à part entière, supra note 42 at 18–19 (both hospital clientele and the number of hospitals increased in the years 1955– 1970); Linteau et al, supra note 127 at 586 (recourse to hospitals increased following the adoption of hospitalization insurance); Georges Desrosiers & Benoît Gaumer, “Réformes et tentatives de réformes du réseau de la santé du Québec contemporain: une histoire tourmentée” (2004) 10:1 Ruptures, revue transdisciplinaire en santé 8 at 14 (hospitalization insurance contributed to developing a hospital-centric model of healthcare delivery). 146 Goulet & Gagnon, supra note 144 at 244–246; Aline Charles and François Guérard, “The Partnerships between the State and For-Profit Hospitals in Quebec, 1961–1975: A Disappointing Experiment” in Gregory P Marchildon, ed, Making Medicare: New Perspectives on the History of Medicare in Canada (Toronto: University of Toronto Press, 2012) 249 at 249, 255 (“until the 1970s, the majority of Quebec hospitals were privately owned by religious communities and philanthropic institutions,” and in the 1960s and 1970s “only the state seemed apt to deliver” hospital care “to every one everywhere”).
30 Important shifts in the labour market also had a significant impact on hospitals and their organization. The number of different healthcare occupations (as well as overall staff) rose significantly, greatly increasing the offer of new and more specialized healthcare services.147 Along with this diversification came the increased unionization of nurses and other occupational groups working within hospitals, and the correlative demands for improved working conditions that came with these efforts.148 Overall, hospital administrators found themselves having to adapt to yet another new reality that made hospital administration much more complex.149
This new complexity of labour relations was not limited to nurses and other salaried workers: physicians also organized themselves more comprehensively in reaction to the state’s increasing use of its power in matters of health. The number of physicians in Quebec almost doubled between 1951 and 1971,150 and the 1960s saw the birth of the medical profession’s two powerful interest groups, the Fédération des médecins omnipraticiens du Québec (FMOQ) and the Fédération des médecins spécialistes du Québec (FMSQ), both of which are still very much a part of today’s healthcare politics. The FMOQ was formed in 1963 and the FMSQ was formed in 1965, and both sought to defend their members’ interests against the “nationalisation” or “socialisation” of medicine and medical practice. Indeed, during the Quiet Revolution there was much mistrust of the government among physicians— particularly among specialists—for the prevailing ideology within the profession up until that time was characterized by economic liberalism and corporatism. 151 But the division of the medical profession into these two powerful groups reflected more than an opposition between physicians and government. The FMOQ’s and the FMSQ’s separate formations also reflected the medical profession’s division between specialists and generalists. Although all part of the same profession, specialists and generalists differed with respect to some of
147 Julien Prud’homme, Professsions à part entière, supra note 42 at 20. See generally Nicole Rousseau & Johanne Daigle, Infirmières de colonie: Soins et médicalisation dans les régions du Québec, 1932–1972 (Québec: Presses de l’Université Laval, 2013) at 55–74 (for an account of the 1960s from the perspective of nurses dedicated to serving rural areas). 148 Goulet & Gagnon, supra note 144 at 242–247; Gaumer, supra note 105 at 124, 129. 149 Gaumer, ibid at 106, 124–130. 150 Gilles Dussault, “Les médecins du Québec (1940–1970)” (1975) 16:1 Recherches sociographiques 69 at 70– 71 [Dussault, “Médecins”]. 151 Goulet & Gagnon, supra note 144 at 283–287, 297–310; Gaumer, supra note 105 at 125–126; Goulet, supra note 144 at 123–126.
31 their respective interests, visions and grievances regarding increased government involvement in healthcare.152
Finally, a new era of medical research and practice in Quebec also began during the Quiet Revolution. 153 State funding of medical research increased with the Lesage government, as did the number of medical researchers and research groups. New research policies and initiatives were also developed,154 such that the biomedical sciences in Quebec are said to have undergone a quiet revolution of their own at the beginning of the 1960s.155 Medical specialization increased significantly as of the 1960s, 156 as did technological innovations, and hospitals adapted by offering a much greater diversity of services than they ever had. 157 The Quiet Revolution also acted as a catalyst for significant change and modernization of psychiatric care and mental health services.158 It was of course inevitable that a phase of reforms to medical education would also begin in the 1960s159—a reflection the new medical reality taking shape in the province.
The creation of Quebec’s professional system and healthcare system, as we know them today, needs to be understood against this historical backdrop.160 I insist on the following feature of this backdrop: the increased diversity of, and competition between, occupational and professional groups working within hospitals and the healthcare sector generally. With this diversity and competition came increasingly complex power struggles. The management of healthcare accordingly became more and more difficult—especially from the perspective of an interventionist state seeking to organize healthcare in a way that would make it accessible in a comprehensive and uniform way to the entire population.
By the second half of the 1960s, all the changes just described created a momentum towards potential chaos that had to be controlled—at least as far as the state was concerned.
152 Gaumer, ibid at 106, 125–126; Goulet & Gagnon, ibid at 299, 305–306; Dussault, “Médecins,” supra note 150 at 80–82; Desrosiers & Gaumer, supra note 145 at 12. 153 Goulet & Gagnon, ibid at 384. 154 Ibid at 403–423. 155 Ibid at 210. 156 Ibid at 207–211; Gaumer, supra note 105 at 124; Dussault, “Médecins,” supra note 150 at 70–73. 157 Goulet & Gagnon, supra note 144 at 242, 248–259; Prud’homme, Professions à part entière, supra note 42 at 19. 158 Goulet & Gagnon, ibid at 277–279. 159 Ibid at 331ff. 160 See generally Prud’homme, “Parent,” supra note 105.
32 An example of this potential chaos came in October 1970, when the FMSQ (representing all Quebec specialists) launched a strike—the second physician strike in Canadian history161— over disagreements with the government regarding the newly adopted public health insurance regime. The specialists held their ground to such an extent that the government adopted a special bill162 to force the specialists back to work.163
In sum, Quebec’s social and political evolution over approximately two decades preceding 1966 set the stage for the establishment of the Commission d’enquête sur la santé et le bien-être social, better known as the Castonguay-Nepveu Commission. This Commission and the report it produced are widely held to be the originating inspiration, the wellspring of both the professional system164 and the healthcare system165 as they are known today.
161 The first physician strike in Canada took place in 1962 Saskatchewan, in circumstances almost identical to those in 1970 Quebec, that is: after the Saskatchewan government adopted an act to provide government- administered medical care with universal coverage; Jean Larmour, “Saskatchewan Doctors’ Strike” in The Canadian Encyclopedia, year 2000 ed by James H Marsh (Toronto: McCleland & Stewart, 2000). 162 Bill 41, An Act Respecting Medical Services, 1st Sess, 29th Leg, Quebec, 1970 (assented to 16 October 1970), SQ 1970, c 40. This Act was repealed two month later; Bill 54, An Act to Repeal the Act Respecting Medical Services, 1st Sess, 29th Leg, Quebec, 1970 (assented to 16 December 1970), SQ 1970, c 41. The Act Respecting Medical Services (Bill 41) was repealed because the National Assembly considered that it had served its purpose. Claude Castonguay, then Minister of Health, announced that Bill 41 had in fact forced specialists back to work and that the population would not be deprived of their services: the specialists, at the time Bill 54 was adopted, had resumed negotiations and signed a letter of intention with the Government. Castonguay was confident that an agreement would soon be reached, and that Bill 41 was no longer useful. The Government was no doubt in a hurry to repeal the controversial Bill 41, described as “une loi d’exception pour faire face à une situation exceptionnelle,” and seen as having disrupted “la paix médicale”; Quebec, National Assembly, Journal des débats, 1st Sess, 29th Leg, vol 10 No 38 (4 December 1970) at 2037. 163 Goulet & Gagnon, supra note 144 at 306–307. 164 See Villeneuve, Dubé & Hobday, supra note 8 at 1–2 (the book begins with the following sentence: “Une étude réalisée dans le cadre des travaux de la Commission . . . est à l’origine du droit professionnel tel qu’on le connaît aujourd’hui”); Desharnais, supra note 54 at 13–14 (the Commission plays a central role in the author’s description of the process leading up to the adoption of the Professional Code); Ordre des comptables généraux licenciés du Québec c Québec (PG), [2004] RJQ 1164, AZ-50232743, J.E. 2004-1041, 2004 CanLII 20542 (QC CA) at 10–12 (the professional system is the “fruit” of the Castonguay-Nepveu Commission’s report); Ordre des comptables généraux licenciés du Québec QCCS, supra note 88 at para 30 (Claude Castonguay is described as the “godfather” of the Professional code and “grand architect” of Quebec’s professional law reform); Gilles Dussault, “La régulation des professions sanitaires: l’expérience du Québec” (1988) 20:2 Sociologie et Sociétés 125 at 125–126, 128 (the Commission plays a central role in the author’s description of the process leading up to the adoption of the Professional Code); Issalys, supra note 81 at 592–595 (the Commission plays a central role in the author’s description of the process leading up to the adoption of the Professional Code); Gaudreau, supra note 48 at 49 (“La réforme faisait suite aux recommandations de […] la Commission Castonguay-Nepveu”); Prud’homme, “Parent,” supra note 105 at 92–95 (the Commission plays a central role in the author’s description of the process leading up to the adoption of the Professional Code); Office des professions du Québec, “L’Office des professions du québec: 25 ans au service de sa mission de protection du public: Anthologie commémorative 1974–1999” (Québec: Office des professions du Québec, June 1999) at 18–20 (the Commission plays a central role in the description of the process leading up to the adoption of the Professional Code); Office des professions du Québec, “Le discours de l’Office des professions du Québec: de 1973 à 1987” (Québec: Office des professions du Québec, 1987) (the Commission plays a central role in the description of the Office des
33 Not only were the legal and administrative infrastructure of the “healthcare system” and the “professional system” established in the wake of the Quiet Revolution,166 but the idea of a system167 itself—the idea that the professions and healthcare could be organized as systems—also emerged at the time. The Castonguay-Nepveu Commission was instrumental in this process: “Système de santé et de services sociaux du Québec” became both the official and commonplace expression referring to Quebec’s public healthcare institutions.168
As I discuss in greater detail in the next section, the Castonguay-Nepveu Commission was very critical of the absence of proper systems in Quebec, both in the case of
professions du Québec’s history); Conseil Interprofessionel du Québec, “Histoire du système professionnel québécois” (Montréal: Conseil interprofessionnel du Québec, August 2014) online:
34 healthcare and the professions. Influenced by cybernetic analysis—which was very influential at the time—the Commission envisaged a comprehensive healthcare system that integrated both the social and the medical, the preventative and the curative. The emphasis was on complete and continuous care, with the integration of different professions and disciplines within a larger framework.169 I argue that it was the Commission’s “systemic” vision of healthcare that led the Commission towards an examination of the professions as a whole, and the conclusion that a professional system was needed in order to fully actualize the healthcare system it envisioned.
This concludes my exposé of the general historical context within which Quebec’s professional system and healthcare system came to be. I now turn more specifically to the professional system’s history, beginning with the work of the Castonguay-Nepveu Commission.
§C. THE CASTONGUAY-NEPVEU COMMISSION
In this Section I discuss the Castonguay-Nepveu Commission’s Report, and expose the elements within the Report that continue to inform our understanding of professional law’s purpose and structure. As mentioned above, the Castonguay-Nepveu Commission’s Report is widely seen as having created the conceptual foundation, or the official discourse, upon which the institutional–legal apparatus of the healthcare and professional systems would be built.
This Section is divided into five subsections. In Subsection i I briefly describe the Commission’s formation and its mandate. In Subsection ii I give an overview of the seven volumes contained in the Commission’s Report it produced. In Subsections iii and iv I focus on two central ideas within the Commission’s discourse: protection of the public, and the need to develop a system that would bring order to disorder. In Subsection v I describe the political aftermath of the Commission’s Report, particularly the ideological continuity— ensured by key members of the Commission—between the Report and the adoption of policies and legislation that followed.
169 Gaumer, ibid at 114–115, 129; Prud’homme, “Parent,” supra note 105 at 91–92; Pierre Bergeron & France Gagnon, “La prise en charge étatique de la santé au Québec: émergence et transformations” in Vincent Lemieux et al, eds, Le système de santé au Québec: organisation, acteurs, enjeux (Quebec: Presses de l’Université Laval, 2003) 7 at 22.
35 i. Formation and Mandate
The Commission sur la santé et le bien-être social was formed by order-in-council on November 9th, 1966. 170 Initially, Claude Castonguay was named as the Commission’s president and Gérard Nepveu was its secretary. Castonguay resigned from the Commission in March 1970 and Nepveu took his place as the Commission’s president in April 1970,171 which explains why the Commission came to be known as the Castonguay-Nepveu Commission.
The Commission had a very broad mandate: “faire enquête sur tout le domaine de la santé et du bien-être social.” 172 The order-in-council specified certain elements of this mandate without restricting its generality. Of these more specific elements we find “l’acte médical . . . l’évolution de l’activité médicale et paramédicale . . . la structure et [le] rôle des divers organismes ou associations s’occupant de la santé et du bien-être social . . . [et les] effectifs médicaux et paramédicaux.”173
As I describe in the next subsection, the scope of the topics covered within the Report demonstrates how broad the Commission’s mandate was, and the lengths to which the Commission went to fulfil it. Many of the Report’s passages are also strikingly suggestive of the lofty vision that animated the Commission’s work.
ii. Overview of the Commission’s Report
The Commission’s Report was published in seven volumes (totalling over three thousand pages) over a period of five years, from 1967 to 1972. In this section, I describe the Report’s overall structure and tone. By “tone” I mean the key notions and intentions that animated the Commission’s work, as seen in the words it uses and the topics it covers.
170 Quebec, Chambre du Conseil Exécutif, Arrêté en conseil numéro 2046, 9 novembre 1966 (online:
36 a. Volumes I–III
The first two volumes of the Commission’s Report were published quickly, at the end of the summer of 1967 (the other volumes would only be published as of 1970). The Commission’s haste in publishing these volumes is due to the government’s demand that the Commission prioritize questions related to (i) health insurance and (ii) the training, professional relations, working conditions and remuneration of medical interns and residents, and that it report back to the government by mid-August 1967.174
In light of the government’s demands, Volume I175 of the Commission’s Report concentrates on health insurance. It describes the broad objectives of health insurance, which is understood as an integral part of “social security”—one of the various ways through which a society protects and improves its population’s standard of living176—and shows how health insurance is a means towards the betterment of Quebec society—an “investment” that would, in the long term, bring economic growth and social progress.177 The Commission writes, for example: “l’amélioration de la santé, bien essentiel et facteur d’élévation du niveau de bien-être collectif, constitue la fin ultime de tout action sociale dans le domaine de la santé.”178
Volume I also sets out the Commission’s recommendation for the structure and financing Quebec’s health insurance regime—the base of what would become the “healthcare system.” It gives both a broad and detailed description of all the key issues related to the creation of such a vast regime, for example: to whom it should apply (everyone); the types of care that should be covered; the number, training and geographic distribution of physicians; the regime’s cost, financing, and economic impact; the administrative structures required; the labour negotiations that would need to take place; complementary policies (including fluoridation of the drinking water supply!); the industry
174 Commission d’enquête sur la santé et le bien-être social, L’assurance maladie Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume I (Québec: Éditeur officiel du Québec, 1967) at XI–XII [CNC Report Volume I]. 175 Ibid. 176 Ibid at 5, 7–10, 35. 177 Ibid at 41ff. 178 Ibid at 35–36 [emphasis added].
37 and market for pharmaceutical products and the cost medication; and the situation of private health insurance regimes.
Volume II179 focuses on various questions related medical interns and residents, namely their training, professional relations, working conditions and remuneration. Since it addresses a more specific issue, it is much shorter than Volume I. The Commission gives an account of (i) the demographics of medical interns and residents, (ii) the organization of medical education and the role of hospitals within it, and (iii) the working conditions of medical interns and residents. The Commission also proposes reforms to medical education in Quebec.
Both Volume I and Volume II begin with an introduction describing part of the historical context within which the Commission came to be. Although the facts the Commission tells add little to the history I give in Section B above, some of the ways in which the Commission describes the situation are worth noting. For example, the Commission writes, in the introduction to Volume I:
Depuis la période de crise des années trente et, plus particulièrement, depuis la seconde guerre mondiale, le Québec a été le témoin et l’artisan d’une expansion considérable de la sécurité sociale. Au course de cette période, la population et les autorités ont progressivement pris conscience du fait que, dans un monde qui s’industrialise et s’urbanise à un rythme accéléré, les problèmes sociaux ne peuvent plus être abordés comme des problèmes individuels . . .
L’importance du développement de la sécurité sociale et des fonctions que, par le fait même, l’État doit assumer dans les domaines social et économique rend nécessaires une définition et une orientation nouvelle du rôle des organismes et des
179 Commission d’enquête sur la santé et le bien-être social, Les médecins internes et résidents: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume II (Québec: Éditeur officiel du Québec, 1967) [CNC Report Volume II].
38 individus œuvrant dans les domaines de la santé et du bien- être social . . .
C’est dans ce contexte d’évolution que notre Commission fut instituée par le gouvernement du Québec . . . Le rôle essentiel de notre Commission est donc de présenter au gouvernement un conception d’ensemble de la sécurité sociale.180
In the introduction to Volume II, the Commission tells us that in 1960, medical interns and residents organized themselves into three professional associations. “Laborious discussion” with hospital authorities followed, culminating in difficult negotiations between the government and a cartel of unions (“cartel syndical”), mostly with respect to salaries. These negotiations ended with medical interns and residents “temporarily” accepting the government’s proposition in early 1967, giving the Commission time to analyse the situation and report back to the Government in haste.181 These two introductions clearly evoke some of the important historical elements described in section B, namely: socioeconomic change (including urbanization) and the medical profession’s increasing organization.
Volume III 182 (published in two tomes) focuses on social and economic development. The Commission expands on the idea that Quebec society finds itself in a context of profound, even “revolutionary” changes in technology, industry and social structures.183 The breadth of the social project envisioned by the Commission to adapt to this new context—already apparent in Volume I184—is expressed in even grander terms in Volume III, as the following passages illustrate:
La politique de développement qui se dégage de la Déclaration universelle des droits de l’homme apparaît
180 CNC Report Volume I, supra note 174 at XI [emphasis added]. 181 CNC Report Volume II, supra note 179 at 11–12. 182 Commission d’enquête sur la santé et le bien-être social, Le développement: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume III (Québec: Éditeur officiel du Québec, 1971) [CNC Report Volume III]. 183 Ibid, t 1 at 19. 184 Indeed, Volume I begins by citing an encyclical by Pope Paul VI (“avoir plus pour être plus: telle est l’aspiration des hommes d’aujourd’hui”), and by stating that human communities must organize themselves to allow each individual to flourish and that a social policy (“une politique sociale”) is the means by which this lofty end can be attained; CNC Report Volume I, supra note 174 at 3. The citing of the encyclical offers an interesting counterpoint to fact that the Quiet Revolution is usually described as a period of secularization; a reminder that the historical evolution of societies is a messy process that never unfolds quite as neatly as the periods commonly used to describe it ex post facto.
39 comme une entreprise essentielle dans une société dont le caractère dominant est le changement, et un changement tellement rapide et profond que nombre d’esprits le considèrent comme une véritable révolution. Le changement provoque, par exemple, une urbanisation rapide qui déracine une foule de citoyens pour les transplanter au sein de vastes agglomérations où ils souffrent d’isolement et de solitude. L’évolution accélérée de la technique rejette une masse de travailleurs du marché de la main d’œuvre et le déplacement de la production industrielle exige une mobilité de plus en plus grande de l’emploi. Ces phénomènes contribuent à désorienter les citoyens, entraînent des répercussions profondes sur les rapports des hommes entre eux et provoquent de l’aliénation, de l’isolement et de la solitude. Il est donc important que la société mette en place une politique de développement qui neutralise dans toute la mesure du possible les effets négatifs du changement et qui s’ajuste aux réalités d’une vie complexe où les hommes, être intelligents et libres, pourront s’épanouir selon leurs aspirations . . .
L’objet du développement social est l’ensemble des facteurs qui exercent une influence sur l’activité des citoyens dans la société . . .
Nos préoccupations portent sur le développement social qui se définit comme la mise en œuvre par la société de l’ensemble des moyens propres à faire accéder à chacun de ses membres au maximum d’épanouissement dont il est capable . . .
Le développement social doit informer la société comme le sculpteur informe le bloc de pierre et le transforme en statue. Une telle entreprise exige l’élaboration d’un ensemble assez complexe de politiques sectorielles et intersectorielles propres à permettre à une société particulière d’atteindre les objectifs qu’elle s’est fixés . . .
40 Or, une analyse sommaire des différents secteurs du développement au Québec suscite dans nos esprits des doutes assez sérieux sur l’orientation de notre société vers la réalisation des droits sociaux et, par voie de conséquence, sur l’existence d’une véritable société de bien-être.185
Keeping in mind (i) the dramatic increase of state activity that occurred over the decade prior to the publication of Volume III (published in 1971, in the wake of the Quiet Revolution), and (ii) the above quoted passages from Volumes I and II, these last passages suggest great faith in the state’s potential to act as a powerful instrument for social progress, an instrument uniquely placed to advance both the individual and collective good in a context of social upheaval—an epoch of social and economic change and transition (“Une époque de changement”).186 Indeed, even though the state is not expressly named in these passages, who—or what—else could be in a position to act as the “sculptor” of society? No person or institution other than the state could undertake an oeuvre of the scale suggested in these passages, and do so in the planned, coordinated and integrated ways envisaged by the Commission. Any doubts that one may have regarding the Commission envisioning the state as principal agent of society’s development dissolve in light of the following passage:
Le développement social exige de l’État qu’il prenne l’initiative d’un ensemble de mesures propres à assurer aux citoyens des conditions de vie adaptées aux exigences de leur destin. Seul l’État possède les pouvoirs et les ressources nécessaires à la mise en marche d’une entreprise aussi vaste. Pour mener à bien une telle tâche, il est parfois indispensable d’opérer des réformes institutionnelles de grande importance. L’État, comme agent du développement, doit donc se donner des structures qui lui permettent de jouer véritablement son rôle dans ce domaine.187
185 CNC Report Volume III, supra note 182, t 1 at 19–20 [emphasis added]. 186 Ibid, t 1 at 29ff. 187 Ibid, t 1 at 233 [emphasis added].
41 Furthermore, the sheer breadth of what is envisioned in these passages—no less than the “neutralization” of as many of the negative effects of socioeconomic change as possible in order to foster living conditions for optimal human flourishing—opens potentially infinite avenues for state interventions in social matters. The Commission casts the state’s new and expansive role in shaping the social environment as the result of a historical evolution: from individualism and the dogmas of economic liberalism (“les principes de l’individualisme et les dogmes de l’économie libérale”),188 to the growth of state intervention in the wake of the French Revolution, 189 to the emergence of social security and New Deal–type policies in industrialized countries,190 to the Welfare State and its policies,191 to the “right” to social welfare (and the state’s corresponding obligation to guarantee a minimum of goods and services to all), to the birth of the notion of “social development” with the Universal Declaration of Human Rights.192 Having gone “from pragmatism to humanism,”193 the state is described as entering a new era in which it not only provides a minimum of goods and services to its citizens, but aims to maximize their human flourishing. The Commission writes:
Le développement social résulte . . . d’une longue évolution de la société vers une meilleure utilisation de ses ressources afin d’assurer le développement humain. Cette nouvelle étape . . . annonce . . . un climat nouveau où [les droits de l’homme qui ont orienté la société d’hier] retrouveront toute leur signification pour le bien-être de tous les hommes.
L’État se dégage de plus en plus des problèmes particuliers et cherche plutôt à créer des conditions sociales qui, malgré la
188 Ibid, t 1 at 207. 189 Ibid, t 1 at 208. 190 Ibid, t 1 at 209–211. 191 Ibid, t 1 at 212–213. 192 Ibid, t 1 at 213–216 (The Commission writes at page 213: “tous les citoyens, quels que soient leur niveau ou leur qualité de vie, ont droit à un certain nombre de biens et de services qui constituent un minimum vital garanti”). 193 Ibid, t 1 at 216.
42 diversité qui caractérise la société, permettent à tous les hommes de s’épanouir.194
Of course no empirical or theoretical analysis could possibly match the vast scope of the ambitious passages quoted above, but the Commission nonetheless makes a mighty effort.
Note that Volume III of the Report is particularly striking for the huge range of issues and ideas it covers: from Quebec’s demographic and economic situation to human rights, political history and philosophy, as well as the various spheres that should be addressed for “social development”—namely education, employment, health, social services, recreation, and housing. The Commission collaborated with several expert consultants,195 received briefs and heard representations from almost two hundred institutions and organisations.196 It also engaged with numerous officials and visited many establishments, in Quebec and Canada as well as other jurisdictions—the United-States, France, Sweden and Czechoslovakia.197
b. Volumes IV–VII
Volume IV198 (published in four tomes) focuses on health—writ large. The first tome begins with a history of health services in Canada and Quebec—a history that culminates with the state taking on a greater and greater role in public health. It then moves on to the role of the environment in human health—discussing air, water, soil and noise pollution, radioactivity, as well as urbanization and nutrition199—followed by a discussion of health statistics—life expectancy, cancer, heart disease, tuberculosis and accident rates, mental illness and child mortality.200 The first tome ends with an analysis of the current situation of Quebec’s “health regime” (“régime de la santé”) covering: the regime’s organization, access to healthcare, the cost of healthcare, and the management of health services. This analysis leads
194 Ibid, t 1, at 216 [emphasis added]. 195 Ibid, t 2 at 237–238. 196 Ibid, t 2, at 238–244. 197 Ibid, t 2, at 245–258. 198 Commission d’enquête sur la santé et le bien-être social, La santé: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume IV (Québec: Éditeur officiel du Québec, 1970) [CNC Report Volume IV]. 199 Ibid, t 1 at 35–58. 200 Ibid, t 1 at 59ff.
43 the Commission to conclude: “la situation actuelle du régime de santé souligne l’absence d’un système intégré de distribution des soins.”201
In the second tome of Volume IV, the Commission articulates its vision for Quebec’s future health regime—“un régime complet fondé sur une conception globale de l’homme.”202 The cornerstone of this regime is an overarching health policy, one that the Commission describes as structured around the goal of improving the population’s overall health via comprehensive person-centred medicine, a healthier environment, and universal access to quality healthcare.203 The Commission argues for the implementation of the notion of “médecine globale,” defined as “une médecine personnelle et familiale, une médecine complète incluant prévention, diagnostic, traitement et réadaptation dans les domaines de la santé mentale et physique, une médecine continue et coordonnée.”204 For the Commission, the distinction between medical services and social services had to be reduced, and prevention and accessibility had to be emphasized. There was also an increased emphasis on multidisciplinarity and reducing the discrepancies in the status of different occupations (and professions) working within healthcare. 205 The CNC Commission was, in many ways, remarkably avant-garde in its proposals for global medicine and a move away form a strictly medical model—a model that the Commission acknowledged as not being sufficiently responsive to the population’s needs, for it focussed too heavily on organic diseases affecting individuals.206
The Commission also explains that healthcare delivery should be structured along three main axes: (i) the level of care required, (ii) the different types of “centers” within which the human and material resources for healthcare should be organized, and (iii) the
201 Ibid, t 1 at 175 [emphasis added]. 202 Ibid, t 2 at 14. 203 Ibid, t 2 at 11–23. 204 Ibid, t 2 at 27. 205 Marc Renaud, “Réforme ou illusion? Une analyse des interventions de l’État québécois dans le domaine de la santé” (1977) 9:1 Sociologie et sociétés 127 at 136–137 [Renaud 1977]; Goulet, supra note 144 at 134. 206 CNC Report Volume IV, supra note 198, t 2 at 27–29. The emergence of the “medical model” is tied to the rise of scientific medicine, which became medicine’s dominant paradigm over the years, beginning in the last decades of the 1800s. The medical model “was based, most fundamentally, on viewing the body as a machine (e.g., organ malfunctioning) and on the germ theory of disease . . . each disease was caused by a specific germ or agent [and] [m]edicine focused solely on the internal environment (the body), largely ignoring the external environment (society)”; Peter Conrad & Joseph W Schneider, “Professionalization, Monopoly, and the Structure of Medical Practice” in Peter Conrad & Valerie Leiter, eds, The Sociology of Health & Illness: Critical Perspectives, 9th ed (New York: Worth, 2013) 216 at 219–220 [references omitted].
44 ways in which healthcare services should be distributed across Quebec’s territory.207 In the last part of this tome, the Commission presents the proposed regime’s organization in much greater detail. It also describes the methodologies that informed the regime’s organization, most notably: cybernetic analysis and administrative theory. On cybernetic analysis, the Commission writes:
Le régime de la santé proposé présente deux caractéristiques essentielles qui le distinguent profondément de l’actuelle structure de la santé au Québec : (a) d’abord, tous les phénomènes de la santé y sont vus en relation les uns avec les autres et forment un tout cybernétique ; (b) ensuite, les actes administratifs qui en sous-tendent le fonctionnement y sont organisés selon les exigences minimales de la théorie administrative.
La théorie cybernétique . . . repose sur les quatre concepts fondamentaux suivants : (1o) le milieu, qui présente des besoins (demandes) et engendre des ressources pour le satisfaire (appuis) ; (2o) le couple moyens-production (input- output), par lesquels les moyens mis en œuvre sont calculés en fonction des objectifs visés ; (3o) la notion de système . . . (4o) la notion d’ajustement (feedback), d’après laquelle sont observées les réactions du système aux modifications du milieu où il baigne et les réactions de ce dernier (tant en besoins qu’en ressources) aux changements qui se produisent dans ce système.208
The Commission then explains that applying cybernetic theory to the health sector’s organization (“l’organisation du secteur de la santé”) leads to this sector’s different components being integrated into the envisioned health regime—into “un ensemble unique . . . un système . . . un tout cohérent.”209 The Commission then describes—following administrative
207 CNC Report Volume IV, ibid, t 2 at 25–65. 208 Ibid, t 2 at 177 [emphasis added, titles omitted]. 209 Ibid, t 2 at 179.
45 theory—how the health sector should be structured into “sub-systems,” such that every institution within the system has precise functions, resources and prerogatives with respect to the others.210 In light of such a discourse—characterized by the notions of planning, structure, integration—it comes as no surprise that the term “healthcare system” came to prominence in the aftermath of the Commission’s Report, superseding the term “regime” in common parlance.211
The third and fourth tomes of Volume IV continue the detailed breakdown of the proposed health regime’s organization that began in the second tome. The third tome addresses: the regime’s financing; the management of healthcare establishments, regional institutions and the Ministry of Health; and the quality control mechanisms required to ensure the regime’s optimal functioning. The fourth tome addresses: the current situation of the healthcare workforce; the education and training of teachers and students of the health sciences; the development of a complete health science research program, balanced across the areas of epidemiology, healthcare operations, basic science and clinical care; and the creation of an integrated system of communication for the entire healthcare regime.
Volume V212 and Volume VI213 require only cursory treatment. Volume V (published in three tomes) focuses on financial security and discusses matters such as: payments to meet the needs of low-income citizens, social insurance, and unemployment insurance. Volume VI (published in two tomes) focuses on social services and discusses, inter alia: social
210 Ibid, t 2 at 179–181. 211 The term “system” was probably favoured over time instead of “regime” because the Commission’s vision includes such a wide range of elements that it could potentially encompass all state activity. “System” also connotes scientific rigour, which helps to cast organized state activity in a positive light. In French, the word “système” was introduced into scientific vocabulary in the middle of the 16th Century, and referred to a collection of propositions ordered together to constitute a coherent doctrine of the world. The word was then used by Descartes in astronomy, and then began to be employed in intellectual discourse to describe a doctrine that helps to coordinate knowledge. Eventually the word came to refer to a coordinated set of practices oriented towards the attainment of a result. “Système” is used in scientific language since the 18th Century to refer to the organization of objects of knowledge following a small number criteria, simplifying the objects’ study. See Alain Rey, ed, Dictionnaire historique de la langue française (Paris: Dictionnaires Le Robert-Sejer, 1998) sub verbo “système”. 212 Commission d’enquête sur la santé et le bien-être social, La sécurité du revenu Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume V (Québec: Éditeur officiel du Québec, 1971). 213 Commission d’enquête sur la santé et le bien-être social, Les services sociaux: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume VI (Québec: Éditeur officiel du Québec, 1972) [CNC Report Volume VI].
46 services policy in other jurisdictions, the history of social services, the current situation of social services in Quebec, and the creation of a “social services system.”214
I do not discuss these two volumes further because they are not directed towards “health” or “healthcare.” Of course the concept of “health” is potentially limitless and could encompass practically any state policy or activity—as attested by “the growing trend in the public health literature and professional discourse of considering human rights violations, economic inequalities, health disparities and numerous other social problems as public health issues.”215 And the Commission does in fact place its discussion of social services (Volume VI) within its overall vision of “social development”216—which further illustrates how the Commission was animated by ideas that aimed towards organizing the state in light of a holistic view of health and social welfare.217 But my objective here is to discuss institutions and individuals more specifically218 concerned with health—the healthcare system and the different professionals working together within this systems—and Volumes V and VI are too far removed from these to be of interest beyond this brief description.
Volume VII, the final volume of the Commission’s Report, is published in two distinctly titled tomes. The first tome219 focuses on the professions and their place in society. The second tome220 focuses on for-profit healthcare establishments. I do not discuss the second tome because it is too narrowly focused on the topic of for-profit healthcare establishments. The first tome, on the other hand, plays a key part in my analysis given that it focuses specifically on professions—not to mention the fact that it this tome is also cited as being “à l’origine du droit professionnel tel qu’on le connaît aujourd’hui.”221 Consequently, all references in this text to “Volume VII” of the Commissions Report refer to this volume’s first tome.
214 Ibid, t1, at 147ff. 215 Mark A Rothstein, “The Limits of Public Health” (2009) 2:1 Public Health Ethics 84 at 84. 216 CNC Report Volume VI, supra note 213, t 1 at 11. 217 The Commission’s official name—Commission sur la santé et le bien-être social—and its very broad mandate lent themselves well to such a goal. 218 See e.g. Mark A Rothstein, “Rethinking the Meaning of Public Health” (2002) 30:2 JL Med & Ethics 144 at 144ff (arguing that the concept of “public health” should be limited to apply to “specific institutions and individuals, such as public health departments and public health officials” in order to be useful in practice). 219 CNC Report Volume VII, supra note 91. 220 Commission d’enquête sur la santé et le bien-être social, Les établissements à but lucratif: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume VII tome II (Québec: Éditeur officiel du Québec, 1970). 221 Villeneuve, Dubé & Hobday, supra note 8 at 1.
47 The Commission deemed it necessary to give the professions and professional law a detailed treatment in a distinct volume because it recognized the singularly important role that professional orders played within the health regime it envisioned. The Commission clearly expresses this in Volume IV, where it writes:
Les ordres professionnels constituent, à n’en pas douter, une des composantes fondamentales du régime de la santé au Québec. Leur fonction dans l’organisation d’un système de normes et de contrôle des actes professionnels sur le territoire québécois revêt une importance primordiale.
Étant donné, toutefois, les implications multiples de l’existence de ces organismes (structures, composition, pouvoirs, etc.) qui débordent largement le domaine de la santé et s’étendent aux services sociaux et à beaucoup d’autres domaines, nous traiterons de toute cette question dans [le Volume VII] de notre rapport.222
Furthermore, the Commission did not limit itself to professions in health and social services: it considered all of the professions. This broad approach fit with the Commission’s commitment towards global, rationalized and integrated systems—a commitment that is (as discussed above) clearly expressed in other volumes of the Report and that is expressed again in Volume VII when the Commission writes: “comme les structures professionnelles de la santé et des services sociaux s’inscrivent dans un tout, il était pratiquement impossible d’étudier certaines professions sans en impliquer plusieurs autres.”223 Treating the professions as a whole also made sense in light of practical considerations. The Commission writes:
Numériquement, la santé et les services sociaux groupent sans doute la majeure partie des membres des professions organisées au Québec et les recommandations que nous faisons les touchent directement. La mise en œuvre d’un grand nombre de ces recommandations serait impossible si la portée en était limitée aux seules professions de la santé et les
222 CNC Report Volume IV, supra note 198, t 2 at 148. 223 CNC Report Volume VII, supra note 91 at 9.
48 services sociaux. C’est donc l’ensemble des professions au Québec qui a dû être considéré. Procéder autrement serait perpétuer le désordre, la confusion et l’inefficacité. C’est donc délibérément que nous avons débordé le cadre des professions de la santé et des services sociaux.224
The Commission began the sizeable task of reviewing and rethinking Quebec’s entire professional system (or what would come to be its professional system) with outside help: that of prominent Montreal lawyer Claude-Armand Sheppard. The Commission mandated Sheppard to undertake a massive research project on the organization and regulation of the healthcare and wellbeing professions (“professions de la santé et du bien-être”) in Quebec. This mandate included: undertaking a complete review of all “professional corporations” (“corporations professionnelles”) and organizations existing or operating in Quebec at the time, and analyzing the entire legal structure surrounding these organizations, including their powers, their autonomy in relation to the state and their interrelations. In order to “objectively” assess Quebec’s professional institutions, the Commission further mandated Sheppard to examine similar or comparable institutions from seven other jurisdictions: Ontario, New York State, California, France, Belgium, Germany and Sweden. The fruit of Sheppard’s research project is a report published in nine tomes and included as Annex 12 of the Commission’s Report.225
Sheppard’s report is important for two reasons. First, because no comparable undertaking—no complete investigation of regulated professions and professional law— existed at the time the Commission began its work.226 Second, because Sheppard’s Report is a treatise in and of itself: the fruit of a massive undertaking that provides a uniquely detailed view of the state of the professional phenomenon in Quebec at end of the 1960s. And by extension, Sheppard’s Report also sheds important light on the Commission’s Report—at least as far as the professions are concerned. I therefore draw from both of these reports in the analysis that follows.
224 Ibid at 10. 225 Claude-Armand Sheppard, L’organisation et la réglementation des professions de la santé et du bien-être au Québec (Report prepared for the Commission d’enquête sur la santé et le bien-être social and included as Annex 12 of said Commission’s Report, Montreal, 16 March 1970) at 11–28; CNC Report Volume VII, ibid at 9. 226 CNC Report Volume VII, ibid at 9.
49 This concludes my overview of the Commission’s Report. Having established the Report’s general structure, tone and animating principles, I now turn more specifically to what the Commission says about the professions and professional law, focusing primarily on Volume VII of the Commission’s Report. More specifically, I draw out the elements that will be of particular significance for the critique I articulate in Chapter 3.
iii. Protection of the Public
In Chapter 1 (§B and §C) above I show how the notion of public protection plays a central role in Quebec professional law. Recall that the Professional Code states that protecting the public is the fundamental mission of professional orders and the Office des professions. Recall as well that the Professional Code states that “the exclusive right to practice a profession” shall only be granted—or, in other words, an exclusive profession shall only be created by an Act—if the protection of the public requires it.227 In the words of Justice Dalphond of the Quebec Superior Court (as he then was):
si une loi crée un ordre et confère un droit exclusif d'exercice à ses membres, c'est parce que le législateur est satisfait que la nature des actes posés et la latitude dont disposent les personnes qui les posent sont telles, qu'en vu de la protection du public, ces actes ne peuvent être exercés que par des personnes possédant la formation et les qualifications requises pour être membres de l'ordre concerné.228
In light of the foregoing, it appears safe to that say the entirety of Quebec’s professional law—including legislation, case law and doctrine—supports the following conclusion: officially, Quebec’s professional system exists to protect the public.229
In this Subsection I argue that protection of the public is central to the official discourse legitimizing the professional system, and that this official discourse arose out of the Commission’s Report—most particularly Volume VII. I show how the Commission, as
227 Professional Code, supra note 7, s 26. 228 Ordre des comptables généraux licenciés du Québec QCCS, supra note 88 at 143 [emphasis added]. 229 See e.g. Desharnais, supra note 54 at 1, n 3.
50 it articulated its vision of what would become Quebec’s professional system, made protecting the public its central preoccupation.
a. A Central Objective
Protecting the public looms large in Volume VII of the Commission’s Report. Immediately in the foreword, the Commission declares: “la Commission a été animée avant tout par le souci d’assurer aussi efficacement que possible la protection du public.”230 Indeed, for the Commission, “une politique saine et acceptable d’organisation et de réglementation des professions doit avant tout garantir la protection des intérêts du public.”231
The Commission’s commitment to protection of the public can be seen throughout the rest of Volume VII. For example, the Commission writes:
La délégation des pouvoirs de l’État, qui permet à un organisme de réglementer une profession, n’a en effet aucune autre justification que l’intérêt public et la difficulté de l’assurer efficacement par des lois ou règlements qui n’émaneraient pas de personnes compétentes. Elle sert à garantir que, formulé par des personnes compétentes aux plans scientifique et technique, le contenu de la réglementation d’une profession sera pertinent.
À défaut de posséder la compétence scientifique nécessaire, l’État donne la compétence juridictionnelle aux organismes professionnels ; mais cette compétence juridictionnelle, ceux- ci l’exercent au nom de l’État, et donc en vue de promouvoir le bien commun, l’intérêt du public.232
And further, the Commission writes that “la structure de l’organisme de réglementation et de surveillance de l’exercice d’une profession devrait permettre à ce dernier d’assurer la protection
230 CNC Report Volume VII, supra note 91 at 9. 231 Ibid at 10 [emphasis added]. 232 Ibid at 44 [emphasis added].
51 du public en réglementant les droits des membres de la profession et la qualité de leur activité.”233
As mentioned above (Chapter 1 §C), the state explicitly grants monopolies to certain classes of people—members of professional orders—via professional law, and more specifically via the creation of exclusive professions and the reservation of professional activities. Monopolies are always suspect in a liberal democratic society, namely because they run counter to some of the free market’s most basic principles.234 Monopolies should consequently be interpreted restrictively. The requirement that professional monopolies should be restrictively interpreted predates the professional system and the Commission’s formation; it was clearly articulated by the Supreme Court of Canada in 1954:
Les statuts créant ces monopoles professionnels sanctionnés par la loi, dont l'accès est contrôlé, et qui protègent leurs membres agréés qui remplissent des conditions déterminées, contre toute concurrence, doivent cependant être strictement appliqués. Tout ce qui n'est pas clairement défendu peut être fait impunément par tous ceux qui ne font pas partie de ces associations fermées.235
However, this principle was of little use to the Commission, who was was faced with a far more fundamental problem: instead of having to interpret the scope of monopolies already granted in legislation adopted by a presumably unerring Legislature, the Commission needed to justify—legitimate—the Legislature’s use of its power to create monopolies in the first place.
The fact that monopolies are suspect in our political order entails that their creation by the state requires special justification—lest they be seen as illegitimate grants of power to a privileged few—, and the Commission anchors its justification for the creation of professional monopolies in the notion of protection of the public. The Commission writes, on the creation of professional orders:
233 Ibid at 45 [emphasis added]. 234 See e.g. Desharnais, supra note 54 at 66. 235 Pauzé v Gauvin, [1954] SCR 15, 1953 CanLII 65 (SCC) at p 18 (per Taschereau J.); see also Laporte c Collège des pharmaciens de la province de Québec, [1976] 1 SCR 101, 1974 CanLII 205 (SCC) at p 102–103.
52 Ces ordres auront deux caractéristiques essentielles: ils pourront réclamer pour leurs membres l’exclusivité de l’usage du titre professionnel et de l’exercice de la profession et ils pourront, à des degrés divers réglementer leur activité professionnelle dans l’intérêt public.
Il importe que le Parlement procède avec la plus grande prudence et après mûre réflexion lorsqu’il délègue son pouvoir de réglementer les conditions d’exercice des professions et l’usage exclusif d’un titre professionnel, de façon qu’une telle délégation se révèle un gage de sécurité pour le public.
Il nous semble que, dans la délégation de ses pouvoirs aux ordres professionnels, l’État devrait se montrer très parcimonieux et . . . juger au mérite l’étendue et l’objet de chaque cas, en fonction des impératifs de la protection du public.
La seule véritable justification des monopoles étant l’intérêt public, il s’ensuit que, pour assurer la compétence requise des praticiens, on n’hésite pas à éliminer les incapables, les négligents ou les malhonnêtes. Chaque fois que le bien général l’exige, le législateur a raison de restreindre l’exercice d’une profession. . .
Toute demande de monopole ou d’extension de monopole doit être appréciée uniquement à la lumière de l’intérêt public. Dans la mesure où la protection de la société l’exige, l’État se doit d’interdire l’exercice de certaines professions aux gens qui n’ont pas la compétence scientifique et les qualités morales requises. . .
Nous proposons comme politique générale à suivre en ce domaine de refuser le monopole de l’usage du titre ou de la réglementation des conditions d’exercice d’une profession,
53 sauf dans le cas où il est évident que la sécurité ou le bien-être du public serait menacé par l’accès libre à la profession. Le monopole . . . doit . . . toujours demeurer un moyen de protection du bien commun.236
For the Commission, then, protecting the public is the only legitimate justification for monopolies.
b. Palliating Mistrust
This justification—monopolies as guarantors of public protection—was particularly important given the context of public mistrust towards professions that prevailed at the time. Indeed, the Commission noted that “il existe inconstestablement une véritable crise de confiance entre les professionnels et le grand public.”237
Public mistrust of professionals was not new, of course,238 and some of its roots can be traced back to the history of professional regulation, as briefly described by Sheppard. The idea of controlling access to certain occupations dates back to the medieval guilds239 (if not earlier) and became more systematically implemented in modern times. Although
236 CNC Report Volume VII, supra note 91 at 45–47 [emphasis added]. 237 Ibid at 79. 238 George Bernard Shaw, in Act I of his 1906 play The Doctor’s Dilemma, described all professions as being “conspiracies against the laity”; see Robert Andrews, ed, New Penguin Dictionary of Quotations (London, UK: Penguin Books, 2006) sub verbo “George Bernard Shaw”. Mistrust of professionals, or at least professional orders, also seems to persist up to this day: Guillaume Hébert & Jennie-Laure Sully, “Les ordres professionnels peuvent-ils garantir la protection du public?” (November 2015) Institut de recherche et d’informations socioéconomiques, Note socioéconomique, ISBN 978-2-923011-75-2 (PDF), online:
54 modern state interventions to control access to certain occupations were mainly motivated by a desire to protect the public—by ensuring professionals’ competence, the quality of their services, and even controlling their prices—these interventions also had accessory purposes for the benefit of professionals themselves, namely: protecting professionals from competition, and maintaining their privileged position in society. These accessory purposes played an important role throughout the history of professions, but had fallen into disfavour by the time Sheppard conducted his analysis.240 He writes: “Notre société n’accepte plus d’entériner la notion de privilèges et de prérogatives particulières. Tout au contraire, l’opinion quasi-unanime est que seul l’intérêt public peut sous-tendre toute législation sur les métiers et professions.”241
Note as well that professional orders 242 were particularly numerous, enjoyed a particularly high degree of autonomy, and wielded a high level of power in Quebec at the time—in comparison to the other jurisdictions analysed by Sheppard. The professional phenomenon in Quebec was characterized by a particularly strong ethos of corporatism243— defined in English as “the control of a state or organization by large interest groups.”244 The Commission clearly condemned this state of affairs, along with the state’s inaction in the face of it. Commenting on Sheppard’s findings, the Commission writes:
La notion de profession qui a présidé l’édification de notre droit professionnel doit moins à la survivance du corporatisme du Moyen Âge qu’aux idées de la société libérale sur l’intervention de l’État, aux attitudes craintives de la population québécoise à l’égard de l’État et aux idéologies et intérêts des groupes sociaux (avocats, notaires, médecins) qui ont traditionnellement accaparé la fonction législative au Québec. Du moins ne saurait-on expliquer autrement cette tendance parfois
240 Sheppard, supra note 225, t 1 at 89–90. 241 Ibid, t 1 at 90 [emphasis added]. 242 Professional orders were also referred to as professional “corporations” or “organizations” (“organismes”) at the time because the term “order” only became ubiquitous in the years following the Commission’s Report and Professional Code’s adoption. 243 Sheppard, supra note 225, t 1 at 110–111, 193–194; CNC Report Volume VII, supra note 91 at 19, n 2. See also Gilles Dussault, “L’évolution du professionnalisme au Québec” (1978) 33:3 Relations industrielles / Industrial Relations 428 at 443ff (on the history of professional corporatism in Quebec). 244 OED, supra note 5 sub verbo “corporatism”.
55 excessive de l’État québécois à se décharger sur les corporations des rôles qui sont les siens.
Ce particularisme du corporatisme québécois est un des points qui ont le plus frappé la Commission au cours de son étude sur les professions. Des sept juridictions étrangères qui ont fait l’objet de son examen, il n’est pas sans intérêt de constater qu’aucune n’a adopté le régime québécois généralisé de réglementation professionnelle par l’entremise de corporations autonomes. De plus, parmi celles qui connaissent un certain régime de corporations professionnelles, aucune ne leur délègue autant de pouvoir que le Québec ou n’accepte qu’elles soient administrées exclusivement par leurs membres comme c’est presque toujours le cas au Québec . . . il est difficile d’admettre une délégation si large, si naïvement confiante et si dépourvue de relations avec les autres services publics.245
It seems reasonable to conclude that the professions’ combination of power, autonomy and privilege nourished the public’s mistrust. Excessive power, autonomy and privilege—either real or perceived—of any social group can easily lead to mistrust among those who are excluded from the group and have little or no means of defending their own interests against it. This is made worse by the fact that an excess of power, autonomy and privilege for one group tends to breed, by definition,246 opposing interests among those with less power, autonomy and privilege. Furthermore, power, autonomy and privilege typically have an inverse relation to transparency and accountability—a relation that generates further mistrust.
These dynamics were compounded by the fact that non-professionals were doubly disadvantaged against the professions at the time. First, non-professionals lacked the political or institutional means to assert themselves against the professions because the professions had been granted legal privileges by what the Commission describes as a disengaged state.
245 CNC Report Volume VII, supra note 91 at 24–25 [emphasis added, footnotes omitted]. 246 To describe something as excessive necessarily implies a value judgment: the thing that is in excess is out of balance, disproportionate with respect to another. See e.g. OED, supra note 5 sub verbo “excessive” (defined as “more than is necessary, normal, desirable; immoderate”).
56 Second, non-professionals lacked the scientific and technical expertise possessed by the professions. This de facto knowledge monopoly forced non-professionals into a state of dependence towards the professions—at least in cases where non-professionals desired to reap the benefits of the professions’ science and technique, which, in the case of the health professions and especially physicians, was understandably often (fear of pain, illness and death are powerful motivators). It comes as no surprise, then, that Shaw characterized the professions as “conspiracies against the laity.”247
c. Institutional Solutions
In light of this context, the Commission deemed it necessary that, going forward, institutional mechanisms had to be created to curtail doubts regarding the disinterestedness of the professions and the professional system’s orientation towards the public good. Times had changed and it was time to bring the professions into the fold, that is: into the Commission’s vision of integrated “social development” orchestrated by the state. The Commission writes:
Aussi faut-il mettre fin aux conditions périmées d’exercice de certaines professions et retirer aux corporations professionnelles . . . tout rôle économique de groupe social pour accentuer celui d’agent de la collectivité . . .
Nous apparaissent comme conditions périmées d’exercice les privilèges accordés aux membres d’une profession et n’assurant par eux-même aucune garantie supplémentaire de protection du public . . .
Les privilèges et restrictions de cette sorte s’expliquent par des situations historiques révolues. Ils sont socialement inefficaces, car ils restreignent l’accès aux services; ils sont professionnellement dépourvus de signification, parce qu’ils n’ont pas pour effet de garantir la qualité du service.248
247 See Andrews, supra note 238. 248 CNC Report Volume VII, supra note 91 at 33–34.
57 Professional monopolies must be justified, and the professions must be seen to serve the public rather than themselves: “la fonction des corporations professionnelles n’est pas tant de défendre les intérêts économiques des praticiens que ceux de la société en général” writes Sheppard, remarking that professions are faced with an obvious conflict of interest.249 Professions’ legislatively sanctioned monopolies—a privilege and source of power—must be as irreproachable as possible: “Tout ce qui ressemble à la limitation de la concurrence devrait être éliminé.”250 This is all the more crucial in light of the fact that professions are trusted by the state to exercise it’s delegated power. The Commission writes: “Il faut bien voir, en effet, la très grande importance de la tâche dévolue à ces organismes et la confiance exceptionnelle dont ils jouissent: ils exercent en fait une partie de la puissance publique de l’État, dans une situation qui peut très facilement donner lieu à des conflits d’intérêts.”251 The Commission’s first, fourth and fifth recommendations read as follows:
QUE la structure de l’organisme de réglementation et de surveillance de l’exercice d’une profession permette à ce dernier de jouer efficacement son rôle de protection du public en réglementant les droits et les obligations des membres de la profession et la qualité de leur activité . . .
QUE le nom d’ordre soit réservé aux organismes professionnels auxquels le législateur est prêt à consentir, après mûre réflexion et en tout prudence, le monopole de l’usage d’un titre et à déléguer le pouvoir de réglementer, à des degrés divers, les conditions d’exercice d’une profession dans l’intérêt public ;
QU’un tel monopole soit accordé dans les seuls cas où il est évident que la sécurité et le bien-être de la population serait menacé par le libre accès à la profession et qu’on détermine
249 Sheppard, supra note 225, t 1 at 228. 250 CNC Report Volume VII, supra note 91 at 56. 251 Ibid at 43–44.
58 l’étendue et l’objet en fonction des impératifs de protection du public.252
Of course protection of the public is not seen solely as a legitimizing idea or a public relations strategy: for the Commission, protection of the public is also the fundamental goal towards which professional law must be oriented. This fundamental orientation of professional law is necessary to correct past power imbalances, since the Commission judges that in the past “le droit des professions a été davantage l’expression de la force des groupes professionnels que la transcription des besoins sociaux et professionnels dans le droit.”253 This fundamental orientation also reflects the Commission’s instrumental view of professional law: it sees the law as a tool, a means of both protecting the public and furthering social development.
For the Commission, professional law is a means by which society can control254 the professions and make sure that they add value to society. The Commission is explicit on this point:
L’activité professionnelle est une activité de service qui a l’homme et son milieu comme objet. Il tombe sous le sens qu’une telle activité exige une certaine forme de contrôle collectif. Pour être cohérente, efficace et continue, l’action collective exige le support du droit. C’est dans la conjonction du besoin d’une certaine action collective à l’égard des professions et de la nécessité de définir cette action qu’il faut voir l’origine du droit professionnel.
Le droit professionnel à donc une vocation strictement instrumentale : c’est son utilité sociale qui lui confère sa valeur . . .255
The Commission further suggests that Professional law is more than a means of simply controlling the professions and protecting the public, it also transforms the professions into a
252 Ibid at 53–54, 89. 253 Ibid at 27. 254 Ibid at 16 (“le droit professionnel . . . instrument de contôle de la société . . . le contrôle de l’activité professionnelle”). 255 Ibid at 15 [emphasis added].
59 public service: “La constitution des professions en organes de droit public précise et institutionnalise leur rôle politique dans la société; elle en fait des services publics . . . C’est par l’organisation professionnelle que se trouve précisé le rapport entre les diverses professions, d’une part, et entre celles-ci et la société, d’autre part.”256
In light of these words, we can imagine the moment of adoption of professional statutes 257 as moments of secular transubstantiation: self-serving, “liberal” professions’ substance transforms into public services oriented towards the common good. The term “liberal” has two meanings here. First, it can refer to the “liberal ideology” or laissez-faire policies criticized by the Commission (as discussed above). Following this meaning, we can imagine the “liberal” professions as being transformed (some may say “socialized”) into institutions oriented, at least in part, towards the public good. Second, “liberal” can also refer to the term “profession libérale”—a term widely used at the time258 and whose definition was discussed by Sheppard.259 At the time, “profession libérale” referred to occupations where the workers (professionals) worked without being subordinate to their employer or client. The “classic” examples liberal professions were medicine, law, and notariat. In other words: a “profession libérale” is one where the worker–professional enjoys considerable autonomy. Following this second meaning, the liberal professional loses some of her autonomy, being in a sense conscripted to serve society.
Therein lies part of the symbolism behind the change of professional regime that took place in the wake of the Professional Code’s adoption. This symbolism—evoking a new direction, a fundamental break with the past—is consistent with two key elements discussed above: (i) the Commission’s vast ambitions of social development via state intervention and (ii) the historical period within which the Commission carried out its mandate.
I the next subsection I show how the transformation of professional law envisioned by the Commission was not just one of substance, but also—and perhaps even more importantly—one of form. The Commission, faced with a chaotic, disorderly array of professional statutes and regulations—and armed with its cybernetic methodology—
256 Ibid at 17–18 [emphasis added]. 257 Especially the adoption of the Professional Code, which was specifically recommended by the Commission. 258 The expression still appears in recent dictionaries; see e.g. Le nouveau Petit Robert de la langue française, 2008 ed, sub verbo “profession” [Petit Robert]. 259 Sheppard, supra note 225, t 1 at 36–37, 40–42, 50–52.
60 adamantly argued in favour of a proper system of professional regulation, one that would bring order to the disordered landscape of professional law.
iv. Systemic Vision: Bringing Order to Disorder
At the time the Commission wrote its Report, the landscape of professional law was disordered on two levels: first, the “conceptual” level—referring to the precision of term “professional” and the ideas associated with it—and second, the “factual” level—referring to the legal, institutional and organizational reality of the professions that existed at the time. These two levels were interrelated. On one hand: conceptual imprecision surrounding the term “professional” would necessarily have an impact on the notion of “professional law” and the manner in which such law would be structured and implemented. On the other hand, the confused state of the legal, institutional and organizational reality on the ground would necessarily feed back into any conceptual confusion or imprecision surrounding the tem “profession.”
In this subsection, I first describe how, in the Commission’s view, professional law was disordered on the conceptual level, and how this conceptual disorder was a problem that had to be remedied in order to implement a proper reform professional law, regulation and organization in Quebec. This leads to a discussion of the Commission’s definition of the term “profession,” and some of the conceptual–theoretical commitments that this definition implies. I then move to the “factual” level and describe the disorder of the legal, institutional and organizational reality of the professions—as chronicled by the Commission. Finally, I discuss how the Commission viewed this disorder as a problem that had to be remedied by the implementation of a complete and integrated system.
a. Conceptual disorder
In the Commission’s view, general use of the term “profession” was no longer adapted to contemporary reality. It wrote: “Vestige d’une époque révolue, la notion traditionnelle de profession, telle que le droit des anciennes corporations nous l’a transmise, ne correspond
61 plus, aujourd’hui, à la réalité et, partant, ne peut plus servir de base au développement de l’organisation professionnelle.”260
For the Commission, this maladaptation was rooted in the “breakup” of the notion of profession (“éclatement de la notion de profession”),261 a breakup rooted in three phenomena. First, the socio-political foundation supporting the legal notion of profession had changed, breaking up the notion in the process. It was no longer acceptable for the state to “naively” delegate large swathes of state power to closed groups (united within professional corporations) that could operate autonomously from the state and administer the areas falling under their “jurisdiction” as they saw fit.262 On the overly broad powers delegated to professional corporations, the Commission wrote:
[L]es premières lois professionnelles ont constitué en services administratifs décentralisés, sans relation fonctionnelle avec l’appareil administratif de l’État, des corporations dont le but n’était pas seulement d’assurer ce qu’on pourrait appeler la « police professionnelle » mais encore d’administrer carrément le secteur couvert par ces professions . . .
Du point de vue de la société, il s’agissait là d’une aliénation de son pouvoir naturel d’orientation du développement et de la participation à l’évolution et à l’insertion des professions dans son sein.263
The time had now come for more “nuanced” approaches to the delegation of state power to professions: approaches that favoured keeping (or taking back) a bigger proportion of once- delegated powers within the political and administrative structures of the state, thereby allowing society (via the state) to better direct and integrate the professions into its development.264
260 CNC Report Volume VII, supra note 91 at 24 [emphasis added]. 261 Ibid at 24ff. 262 See supra note 249 and accompanying text (“il est difficile d’admettre une délégation si large, si naïvement confiante”). 263 CNC Commission Volume VII, supra note 91 at 25; see also supra note 247 and accompanying text (regarding the corporatism of Quebec professions at the time). 264 CNC Report Volume VII, ibid at 25–26.
62 Second, the notion of profession was broken-up by various occupational statutes that had been adopted over the previous decades. These different statutes resulted in various occupations being subject to very different legal regimes. As a result: “la législation a mis en place un système juridique des professions qui apparaît incohérent. Ce système a institutionnalisé des attitudes différentes à l’égard des diverses occupations et fait éclater la notion de profession dans notre droit professionnel.”265 Different professions had different legal status with respect to their relationships to the state and their relationships to each other. For the Commission, these differences in status “ne semblent relever d’aucune conception systématique de leur nature commune, de leur signification relative pour la société et de la place qu’elles doivent y occuper, non plus que de la manière de les institutionnaliser et des régimes juridiques auxquels elles devraient être soumises.”266 Not only was this diversity of status inefficient, it also reflected a deeper problem that ran against the Commission’s vision of professions as public service: “le droit des professions a été davantage l’expression de la force des groupes professionnels que la transcription des besoins sociaux et professionels dans le droit.”267 In other words: professional law had been used as an instrument, but instead of being the instrument of the state and society, and had been the instrument of professions’ closed corporatist interests.
Third, the notion of profession was broken-up by the increased diversity of professional activity. Professional activity—and the professionals who engaged in it—could no longer be easily described by a short list of features that constituted the “traditional” notion of profession, features such as: being a self-employed and autonomous worker, having been freely chosen by one’s client, and having the liberty of negotiating one’s fees. Many professionals were now salaried employees, working for the state or large institutions. Other professions—namely physicians and other healthcare workers 268—had begun to unionize. These unions were of course explicitly oriented towards improving the conditions of their members. Some professions were divided among different unions, a phenomenon that affected these professions’ cohesion as single groups—the most obvious example being the medical profession’s division between generalists and specialists (not to mention interns
265 Ibid at 26 [emphasis added]. 266 Ibid at 27 [emphasis added]. 267 Ibid. 268 See Chapter 2 §B, above.
63 and residents), and the sometimes very different political positions held by these two groups’ unions. In the eyes of the Commission, dynamics such as these made professionals very similar to other workers. 269 The Commission noted: “La notion de profession . . . a lentement perdu son sens ou, en tout cas, n’évoque plus un certain nombre de critères précis et exhaustifs qui permettraient de la distinguer des autres types d’occupations des présumés « non professionnels ».”270
In sum, the Commission argued that the traditional notion of professions no longer fit with reality, and that this notion could consequently no longer serve as a foundation for professional organization. Indeed, for the Commission, the disorganization of the professions was partly caused by the gap between the traditional notion of professions, on one hand, and the reality of professional activity on the other hand.271 This gap was made worse by three problems: the inherent terminological ambiguity of the term “profession,” the diverse definitions that could be put forward for the term, and the different ways in which professions could be classified—all three of which Sheppard insisted on in his report.272
As a result of this terminological–conceptual uncertainty, the Commission needed to break with the past by rejecting the traditional notion of professions and proposing a new definition of professions. This new definition had to meet at least four criteria in order to be useful. First, it had to adequately fit with reality—as perceived by the Commission—and be flexible enough to encompass the new diversity of professional phenomena that had arisen in Quebec. Second, the definition needed sufficient analytical precision, for it had to be able to serve as a foundation for the system of professional organization envisioned by the Commission. Third, it had to define professions in a way that was compatible with the Commission’s overall socio-political vision and orientation: that of social development orchestrated by an interventionist state.273 Fourth, it had to balance state intervention and
269 CNC Report Volume VII, supra note 91 at 27–29. 270 Ibid at 43. 271 Ibid at 29 (“La notion traditionnelle de profession ne pouvant plus servir de fondement pour la constitution des organismes professionnels, il était fatal que le développement de l’organisation des professions se fît de façon plutôt désordonnée”). 272 Sheppard, supra note 225, t 1 at 40–86. 273 Of course the Commission does not articulate its justification for a new definition of professions in these terms. I argue, however, that these criteria flow, by necessary implication, from the Commission’s discourse.
64 control with the fact that many professions were politically powerful, and vocal in their opposition to state interference in their “internal” affairs.274
b. A New Definition
The Commission developed its new definition of professions by “going back to basics,” so to speak, by reducing professions to their most essential feature: remunerated work activity. Indeed, for the Commission, the notion of profession “recouvre d’abord une activité exercée de façon habituelle et contre rémunération.”275 A profession had to first and foremost be understood as a type of service among other goods and services: “un fait économique du type service. Telle est essentiellement la nature de la profession et c’est sur ce point de départ que doit s’ériger le droit professionnel en tant qu’instrument de contrôle de la société.”276
At the same time, the Commission recognized that the notion of profession implies a certain level of technical specialization and mastery. The essence of professions may be work, but this work is technical and specialized. For the Commission, the technical and specialized nature of professional work entails that professions enjoy a certain level of autonomy with respect to the rest of society, for only those versed in the profession’s discipline are truly capable of judging its exercise:
la notion de profession implique une . . . dimension qui impose la reconnaissance d’une certaine autonomie vis-à-vis de la société: l’activité professionnelle relève d’une discipline qui permet de la juger.
274 See e.g. Prud’homme, “Parent,” supra note 105 at 94 (the Professional Code, when first presented to the legislature, was met with considerable resistance). The historical context at the time—including but certainly not limited to physicians’ strikes in protest of the implementation of health insurance in Quebec and Saskatchewan—no doubt played an important role in shaping the Commission’s view that a complete takeover of the professions by the state was inadvisable, and that instead “l’État, en tant que mécanisme de gouvernement et de contrôle utilisé par la société, doit exercer un certain rôle directeur ; ce qui n’implique pas, toutefois, une intervention directe et continuelle. Il existe d’autres formules, plus souples.” Furthermore, the Commission was of the opinion that “l’organisation actuelle des professions . . . est saine dans ses fondements, bien que des éléments discutables aient pu s’y glisser au hasard des conditions historiques”; CNC Report Volume VII, supra note 91 at 10–11. 275 CNC Report Volume VII, ibid at 16. 276 Ibid.
65 Par définition . . . la profession exprime la spécialisation d’une formation dans la société.277
Consequently, professional law must contain mechanisms that harness technical mastery within each professional discipline in order to allow society to effectively exercise control over the professions.278 By recognizing the importance of technical mastery for the purpose of controlling professions, the Commission effectively legitimized the delegation of state power to professional orders, most notably the power to control and supervise professional competence, standards of practice, and ethics—a power enshrined as a fundamental function of professional orders in Quebec’s professional system, and aimed at professional orders’ primary mission of protecting the public. Once delegated, the exercise of this power had to be in the public interest (to protect the public) in order to remain legitimate.279
Given these basic commitments—professions are (1) centered around work activities that involve (2) a level of technical specialization—the Commission adopted the following “functionalist”280 definition of the professions:
277 Ibid. 278 Ibid. 279 Ibid at 44 (“à défaut de posséder la compétence scientifique nécessaire, l’État donne la compétence juridictionnelle aux organismes professionnels ; mais cette compétence juridictionnelle, ceux-ci l’exercent au nom de l’État, et donc en vue de promouvoir le bien commun, l’intérêt du public”). See also Desharnais, supra note 54 at 80–81 (the notion of protection of the public serves to legitimize the state’s grant of power to professional orders, compensating for the fact that those powers can also be used to serve the interests of the orders’ members; maintaining the legitimacy of professional law, professional organization and the professions themselves can be seen as striking a balance between protection of the public and the protection of professionals’ interests). 280 Functionalism was the dominant approach within the sociology of the professions, from the roots of the discipline at the beginning of the 20th Century to the 1960s when critiques of functionalism began to emerge. It is difficult to define functionalism specifically, since it was not a monolithic school of thought. However, functionalists do appear to have shared some basic commitments, regarding the professions as: (i) communities of experts capable of applying their knowledge to specific cases (ii) emerging out of a natural social process, (iii) taking on particular and necessary responsibilities and activities within society (especially modern society), and (iv) contributing to social order and harmony. Emile Durkheim’s views were particularly influential in the early sociology of professions, and sociological work influenced by him tends to focuse on the functioning of social systems, which are comprised of multiple interdependent institutions that take on essential roles within social systems in order to keep the systems functioning. See generally Florent Champy, La sociologie des professions, 2nd ed (Paris: Presses Universitaires de France, 2012) at 16–17, 19–23; Claude Dubar, Bernard Tripier & Valérie Boussard, Sociologie des professions, 4th ed (Paris: Armand Collin, 2015) at 69–71, 77–78, 83–87, 93–96, 119–121; Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (Chicago: University of Chicago Press) at 4–9; John Martyn Chamberlain, The Sociology of Medical Regulation: An Introduction (Dordrecht: Springer, 2013) at 71–74; Stéphane Martineau, “Un champ particulier de la sociologie: les professions” in Maurice Tardif & Clermont Gauthier, eds, Pour ou contre un ordre professionnel des enseignantes et des enseignants au Québec (Québec: Presses de l’Université Laval, 1999) 7 at 12–13; Juanne Nancarrow Clarke, Health, Illness and Medicine in Canada, 5th ed (Don Mills, ON: Oxford University Press, 2008) at 4–11.
66 Le droit professionnel constitue en fait la reconnaissance juridique d’une activité dans la société. En tant que sujet du droit, la profession est la description d’une activité particulière dans un secteur donné de la vie. Nous aboutissons donc à la définition fonctionnelle suivante de la profession : « Type d’activité exercée régulièrement et contre rémunération, dans le cadre d’une discipline ou d’une technique particulière. » Cette conception de la profession influence à son tour la constitution, le rôle et le fonctionnement des organismes professionnels.281
In this passage and definition, professions are essentially reduced to the work activities that their members engage in; professions are simply remunerated work activities that are given legal recognition. In adopting this definition, the Commission rejected the “classical” ideas behind the notion of professions libérales, and the idea that certain professions may have particularities that would justify treating them differently from any other kind of work: “On ne peut donc admettre qu’il y ait une différence de nature entre le droit des diverses professions, qu’elles soient dites libérales ou industrielles.”282 This closely followed Sheppard, who examined the regulation of many different occupations—notably in the construction industry283—and wrote: “Dans son essence, la réglementation de la médecine ne diffère guère de celle du métier d’électricien.”284 In sum: the Commission’s definition of professions emphasized the function, or activity-based role, that professions played within society.
This definition of professions downplayed the fact that professions had often been associated with significant social status and prestige, especially in the case of the classical professions libérales—medicine, law, and notarial law.285 This downplaying should be seen in light of the fact that both the Commission and Sheppard considered social status and prestige to be problematic in the context of the professions. For example, the Commission
281 CNC Report Volume VII, supra note 91 at 16–17 [emphasis added, footnote omitted]. 282 Ibid at 16. 283 Sheppard, supra note 225, t 1 at 120–125. 284 Ibid, t 1 at 150. 285 Ibid, t 1 at 36–40. The term “profession” commonly referred to an occupation with social or intellectual prestige; Petit Robert, supra note 258 sub verbo “profession” (“Métier qui a un certain prestige social ou intellectuel”).
67 wrote that professional activity “requière souvent une longue préparation et la maîtrise d’une science (ou d’un art ou d’une technique) susceptible de conférer un prestige social, sinon une position de pouvoir réel,” but immediately insisted on the fact that professional activity nonetheless remained a (mere) service.286 It noted further that professional status was, in and of itself, sought after by occupational groups because of the prestige associated to it, without concern for the broader consequences to society.287 Sheppard noted the prestige associated with the terms “profession” and “professional” overshadowed rational discussion of the matter, and that prestige incited other occupations to seek (or at least aspire to) the status of profession.288 So the Commission, concerned with curbing corporatism, elitism, and the rush towards status for its own sake, downplayed these elements in articulating its definition of professions. In a sense, this was a way of beginning a new era of professionalism—one in which professions would be reoriented towards serving the public—on a clean slate.289 The Commission committed itself to a more “social” or egalitarian view of professions: professions were to serve the public, not themselves.
The Commission’s definition of professions, therefore, eliminated the distinction between professions and occupations: first by emphasizing the functional role of professional disciplines as the central defining feature of professions, and second by de-emphasizing prestige, status and autonomy as a central features of professions. Commenting on its definition, the Commission wrote:
Cette définition fonctionnelle de la profession constitue en fait une définition de l’occupation au sens strict. C’est à cette acception du terme que nous nous en référons dans la suite du présent texte, lestant de la sorte la notion de profession de toute connotation historique ou de toute référence à la
286 CNC Report Volume VII, supra note 91 at 16. 287 Ibid at 28. 288 Sheppard, supra note 225, t 1 36–38. 289 CNC Report Volume VII, supra note 91 at 19, n 2, 28, 33, 39.
68 conception que s’en est faite la société libérale (privilège, statut social).290
In so doing, the Commission greatly simplified the professional phenomenon, making it much easier to articulate its systematic vision of professional law and organization.
c. Factual Disorder
Turning now to the disorder that the Commission observed on the factual level of professional law and organization, it is important to reiterate that both the conceptual and factual levels are linked, and that any disorder on one level will impact the other. On the link between the factual and conceptual levels, the Commission wrote:
De fait, l’éclatement de la notion de profession, que révèle l’étude de notre droit professionnel, se double d’un développement désordonné de l’organisation professionnelle, lui- même dû en partie au comportement des membres des diverses professions et à l’absence d’une philosophie de l’organisation professionnelle chez les gouvernements.291
The absence of a clear notion of professions and the absence of an overarching philosophy of organization came hand in hand. As for the factual reality, the Commission noted a gap between the society’s needs and the state of professional law and organization. The Commission wrote:
Le grand problème actuel du droit et de l’organisation professionnels, c’est son inadaptation. Non seulement le droit professionnel n’exprime-t-il plus les besoins de la société moderne, mais encore il va souvent à l’encontre même des conceptions idéologiques et technologiques qui président à son évolution. Quant à l’organisation professionnelle, elle présente l’inconvénient majeur et difficilement supportable
290 Ibid at 17, n 1. Sheppard also adopted a very basic definition, free of all connotations of social prestige and status: “nous nous proposons d’utiliser le terme de “profession” dans son sens le plus large d’occupation rémunérée régulière”; Sheppard, supra note 225, t 1 at 66. 291 CNC Report Volume VII, supra note 91 at 23 [emphasis added].
69 (car elle se trouve alors en contradiction avec sa raison d’être) de ne plus traduire l’état réel des disciplines professionnelles et de leurs rapports réciproques.292
In other words, the Commission was faced with “normative lag aggravated by human fallibility.”293 The normative lag was that of the law, which was out of step with reality. The fallibility was that of elitist, corporatist professionals (and members of non-professional occupations) seeking to protect or increase their status, compounded by the fallibility of an overindulgent state.294 Faced with normative lag, the Commission had to develop a new regime. This new regime had to be consistent with both factual reality and the ideological expectations of the time. This related back to the Commission’s perception of disorder: the existence of disorder in need of ordering helped to justify the Commission’s recommendations.295
Of prime importance for the Commission was that the new regime of professional law and organization be systematic, for professional organization exhibited “une incohérence et une complexité telles qu’il nous est actuellement difficile d’y voir un système voulu et articulé.”296 Professional activity was divided among too many types of corporations (or similar institutions) with varying status and title. As a result, professional organization was characterized by an illogical and confusing nomenclature, and it was impossible to classify institutions following clear, functional criteria “permettant de commander un régime juridique approprié et uniforme.” 297 The Commission’s comments with respect to the incoherence and maladaptation of professional organization are striking:
L’anarchie qu’on a pu constater dans la diversification et la multiplication des organismes occupationnels a produit une structure professionnelle incohérente et pour tout dire sans
292 Ibid at 24 [emphasis added]. 293 Frank Burton & Pat Carlen, “Official Discourse” (1977) 6:4 Economy and Society 377 at 406. 294 See e.g. CNC Report Volume VII, supra note 91 at 28–29. 295 Vincent Lemieux, “La Commission Rochon et la réalisation des politiques publiques” (1989) 32:2 Canadian Public Administration 261 at 265 (“Les commissions d’enquête et d’autres groupes d’experts chargés de déceler des problèmes dans la structuration et le fonctionnement d’un système ont . . . tendance à déceler du désordre ou de l’anarchie pour mieux justifier leurs propositions de réforme”). 296 CNC Report Volume VII, supra note 91 at 29. 297 Ibid at 30.
70 correspondance avec les besoins réels de la société ni même des membres des diverses professions . . .
Fouillis il y a, mais non système !
La réforme proposée en matière de santé et de services sociaux serait compromise si le désordre de l’organisation professionnelle qui vient d’être décrit se continuait. Selon le procédé utilisé jusqu’à maintenant dans le présent rapport, c’est sur des considérations de services à rendre et d’efficacité dans leur fonctionnement que nous allons fonder nos recommandations touchant l’organisation professionnelle.298
Systematization, coordination, integration, harmonization and other related notions were key features of the Commission’s vision, both with respect to professional law,299 as described here, but also with respect to the Commission’s program as a whole. In its discussion of health insurance, the Commission insisted on the importance of planning, coordinating and integrating healthcare workers’ activities for the purposes of maximum efficiency.300 It wrote further that “l’assurance-maladie constitue en outre un des mécanismes dont la société dispose pour obtenir un programme complet, intégré et optimal d'investissement dans les ressources humaines.”301 Faced with a great diversity of regimes within Quebec’s social security system, a diversity that had grown in an ad hoc manner in response to needs rather than following an overarching plan aimed at harmonious development, the Commission wrote that “[u]ne coordination et une rationalisation s’imposent.”302 This meant that the Commission would not stop at describing its envisioned health insurance regime, but that it would also insist on the importance of “complementary” policies and measures
298 Ibid at 31–32 [emphasis added] 299 See Villeneuve, Dubé & Hobday, supra note 8 at 4 (“la réforme du droit professionnel, principalement avec l’adoption du Code des professions, voulait . . . permettre de créer un système juridique plus cohérent et rigoureux et ainsi mettre fin à un certain désordre au niveau de l’organisation professionnelle”). 300 CNC Report Volume I, supra note 174 at 38–40. 301 Ibid at 40 [emphasis added]. 302 Ibid at 31.
71 ranging from the planning of healthcare research and fluoridation of potable water.303 It was necessary to
équilibrer et de coordonner le développement et l’action dans les divers secteurs de la santé, afin qu’ils puissant fonctionner harmonieusement et efficacement . . . le gouvernement devra, en même temps qu’il s’engage dans la voie de l’assurance- maladie, effectuer des investissements considerable afin de donner un meilleur équilibre au domaine de la santé.”304
Rethinking and creating a healthcare “system” entailed rethinking the organization of healthcare professions, which in turn entailed rethinking professional law and organization as a whole: “comme les structures professionnelles de la santé et des services sociaux s’inscrivent dans un tout, il était pratiquement impossible d’étudier certaines professions sans en impliquer plusieurs autres.”305 All elements had to be considered together as a single, coherent and harmonious system. The healthcare system and the professional system were— and still are—indissociable, and they were reimagined by the Commission in a single momentum, with the same driving inspiration.
This overall drive towards systematization, integration and coordination makes sense in light of the historical context: a context characterized by change, fragmentation, division and upheaval in society.306 Indeed, recall the immediate context of healthcare in the years leading up to the Commission’s formation: the medical profession was divided (between generalists and specialists) with respect to collective bargaining and state-funded healthcare; paramedical professions—many of which had fought vigorously for legal recognition after having slowly built their practice area over the years, often in competition with the more established professions of medicine and nursing—had diversified and developed; 307
303 Ibid at 173–183. 304 Ibid at 183. 305 CNC Report Volume VII, supra note 91 at 9. See also Gaumer, supra note 105 at 153. 306 See e.g. CNC Report Volume III, supra note 182, t 1 at 31–36; CNC Report Volume VII, ibid at 9 (“le domaine des sciences de l’homme et de la santé a été boulversé par l’apparition de nouvelles techniques et de nouvelles spécialités qui ont créé de graves problèmes d’organisation”). 307 Gaumer, supra note 105 at 106, 124–130, 153.
72 unionization had increased, complicating the management of healthcare establishments.308 Healthcare was fragmented and disorganized:
L’exercice professionnel, aussi bien au Québec qu’ailleurs au Canada et aux États-Unis, repose sur la spécialisation croissante du personnel, qui entraîne la fragmentation des services et l’isolement de certaines catégories de professionnels. Le développement rapide de la science médicale aboutit à son morcellement . . . Le même phénomène envahit les autres professions de la santé et leur nombre croissant témoigne du phénomène.”309
All this fell into the larger historical context discussed above—a context of profound social change over the preceding decades, change that had resulted in institutional maladaptation on a large scale:
L’accroissement démographique, l’urbanisation désordonnée, la détérioration du milieu naturel de l’homme par la pollution de l’air, de l’eau et de la terre, le « stress » de la vie moderne, le bouleversement des valeurs traditionnelles, les conditions de travail dictées par l’industrialisation et l’automatisation, l’isolement social de certaines personnes, tel celui des personnes âgées ou seules, la transformation de la famille de type rural en une famille de type nucléaire (composée seulement des parents et des enfants), les tensions auxquelles cette nouvelles famille est soumise, tous ces facteurs et beaucoup d’autres encore contribuent, à des degrés divers, à rendre plus difficile l’adaptation de l’homme à son milieu de vie.
308 Ibid at 129. 309 CNC Report Volume IV, supra note 198, t 1 at 112–113 [emphasis added].
73 Il est de plus en plus nécessaire de s’interroger sur l’orientation de la société, car ou la société est mal orientée, ou l’homme est incapable de s’orienter en elle.310
Systematization, then, was a way to adapt social institutions to meet a new set of needs that had arisen in society following a period of significant transformation and upheaval.
d. Systematization
The Commission’s propositions for systematization took many forms, the most salient of which I discuss here. First and most obviously was the adoption of a single statute: the Professional Code. The Professional Code would replace the “mosaic”311 of professional statutes that existed at the time and of which the Commission was highly critical:
Il est étonnant que les lois relatives aux organismes professionnels ne constituent pas un régime mais une nomenclature disparate de documents législatifs sans correspondance, sans relation et sans complémentarité. Il est renversant de constater que ces lois sont traitées comme des « bills privés », c’est à dire comme des projets de loi à caractère particulier, alors qu’elles concèdent souvent des attributions de puissance publique aux organismes qu’elles instituent. Il est intolérable que les lois adoptées en rapport avec les occupations . . . ne soient pas complémentaires et articulées les unes aux autres.312
This mosaic resulted in a “legislative incoherence” (“incohérence législative”) that could be corrected by grouping all legislative provisions within a single, public—as opposed to
310 CNC Report Volume III, supra note 182, t 1 at 35–36 [emphasis added]. 311 CNC Report Volume VII, supra note 91 at 53, 89 (the Commission’s second recommendation read as follows: “QUE soit adopté un Code des professions constituant le régime de droit des occupations et remplaçant la mosaïque actuelle des lois relatives aux occupations”). 312 Ibid at 36–37 [emphasis added]. The mention of private bills in this passage is interesting because touches on as an important aspect of professional law’s historical development in Quebec up until the Commission’s Report: the law had developed in an ad hoc manner, no doubt following the relative lobbying powers and abilities of different occupational groups, and the legislature’s receptiveness to conferring privileges to those groups. The Commission wrote: “À l’heure actuelle, presque toutes les lois constituant des corporations professionnelles et gouvernant les professions sont des lois privées, proposées par des individus ou des groupes”; Ibid at 83. See generally Sheppard, supra note 225 at 90–91, 191–197.
74 private—statute easily accessible to the public (because private bills were not uniformly published).313
Second, the Commission recommended uniformity with respect to the terminology and status of professional corporations. Regarding terminology: the term “order” only became ubiquitous in the years following the Professional Code’s adoption. For example: the Commission argued that the term “college” (“collège”) should not be used to designate orders. 314 Terminological uniformity accompanied status uniformity: professional orders were to be the basic unit of the Commission’s envisioned system of professional organization, and all orders would have identical status.315 Indeed, the Commission noted the existence of far too many different types of professional institutions (“organismes”), with different names, functions and status. The whole was incoherent, and it was impossible to see “un principe de partage fonctionnel” by which these institutions could be uniformly classified and created.316
Third, the Commission recommended that professional disciplinary proceedings follow a uniform procedure and result in uniform penal sanctions.317 Individual professional orders would be left define specific standards of professional ethics, but general standards of ethics and professional practice would apply uniformly to all professions, most importantly: professional confidentiality (“secret professionnel”).318 The Commission also recommended that sanctions for illegal practice or usurpation of title be made uniform.319 The Professions Tribunal’s jurisdiction, briefly discussed above, can be seen as an outgrowth of these recommendations, since having a single tribunal to hear appeals of disciplinary decisions helps to ensure uniformity in disciplinary law over time.
Fourth, the notions of role differentiation or functional division of tasks were central to the Commission’s systemic vision. These notions were the common thread linking many of the Commission’s key recommendations, and had been influential throughout the reforms that
313 CNC Report Volume VII, supra note 91 at 83, 85–86. 314 Ibid at 49, 54, 89. 315 Ibid at 35, 37, 45. 316 Ibid at 29–30. 317 Ibid at 66, 68. 318 Ibid at 61. 319 Ibid at 51.
75 grew the state’s bureaucratic–technocratic apparatus during the Quiet Revolution. Dividing up tasks and assigning them to specialized people or institutions with clearly defined roles in order to facilitate centralized administration and planning was key during the Quiet Revolution, and the Commission was in complete continuity with this trend. Part of the rationale was to ensure complementarity while avoiding overlap between different roles. Different tasks or roles were to be highly integrated into a unified system.320 As far as the reform of professional law was concerned, these ideas would affect the Commission’s recommendations, both with respect to the institutional structure of professional organization and the way in which professions (and the disciplines they covered) would relate to each other.
Regarding the institutional structure of professional organization, professional corporations’ roles were unclear at the time: they may have partly been constituted to protect the public, but they also sought to protect and advance the interests of their members—and the fear was that they were more often concerned with the latter than the former. For example: the medical profession’s incorporation in Quebec was part of an effort, led by the profession’s leaders, to raise the profession’s social status—make it more powerful, respectable and respected.321 The conflict of interest for professional corporations was clear,322 and had to be remedied—especially considering the public’s mistrust of professions.
Consequently, the Commission deemed it necessary to clearly separate, on the one hand, the professional institution charged with both (1) administering the profession’s monopoly and (2) protecting the public and, on the other hand, the professional institution charged with defending its members’ interests. Professional orders would be charged with—
320 Prud’homme, “Parent,” supra note 105 at 90–91 (“les dirigeants de l’État . . . formalisent les rouages [de la fonction publique] et s’appuient explicitement sur le principe d’une division fonctionnelle des tâches”). For example: the Commission criticized the glaring absence of systematic organization in healthcare delivery; CNC Report Volume IV, supra note 198, t 1 at 96; CNC Report Volume VII, supra note 91 at 36 (“la réforme de l’organisation professionnelle qui s’impose doit non seulement viser à sa modernisation mais encore à son intégration accrue à la société”). 321 Jacques Bernier, La médecine au Québec: Naissance et évolution d’une profession (Québec: Presses de l’Université Laval, 1989) at 50–53. See generally Denis Goulet, “Professionalisation et monopolisation des soins: le Collège des médecins du Québec 1847-1940” (2004) 10:1 Ruptures, revue transdisciplinaire en santé 39 (on the medical profession’s consolidation of its power in Quebec); Claudine Pierre-Deschêches, “Santé publique et organisation de la profession médicale au Québec, 1870-1918” in Peter Keating & Othmar Keel, eds, Santé et société au Québec: XIXe–XXe siècle (Montréal: Boréal, 1995) 115 at 117, 121 (on the medical profession beginning to organize on a larger scale and the professions seeking more influence in public health matters). 322 CNC Report Volume VII, supra note 91 at 43–44.
76 and “specialized” 323 in—the former tasks via a delegation of state power, whereas professional unions (“syndicats”) would be charged with the latter task by a mandate from their members. The Commission also acknowledged the possibility of professional associations, freely created and possessing no powers, aimed towards various goals such as promoting excellence within professions or promoting a professional discipline. Competition between professional orders and the other institutions was unacceptable: they had to limit themselves to their specialized role.324 Professional orders had to be equal in status—the Commission explicitly rejected arranging them in a hierarchy—with no overlapping functions (or as little overlap as possible), for not only did overlap sap professional law’s rationality and coherence, it also tended breed competition between institutions for increased social status.325
Regarding the ways in which different professions and disciplines would relate to each other, the Commission’s recommendations were also influenced by role differentiation and functional division, since one of the Commission’s fundamental recommendations was that professional orders be conferred exclusive control over professional titles and activities. 326 Furthermore, the Commission’s recommendation that professional orders should not be hierarchized was in large part motivated by the idea that the different orders were built upon an exclusive area of competence:
ce qui surprend encore davantage, c’est le fait que la participation à certaines [corporations] habilite leurs membres à poser des actes constituant l’activité ordinaire des membres d’une autre corporation, pour aboutir de la sorte à une hiérarchie des corporations, ce qui va à l’encontre du principe même de la compétence exclusive sur lequel elles sont édifiées.327
323 Ibid at 35 (“les corporations doivent être vues exclusivement comme des agents publics spécialistes (possession de la discipline) et spécialisés (l’administration d’une profession)”). 324 Ibid at 34–37. 325 Ibid at 32, 47. 326 Ibid at 45–46, 53–54 327 Ibid at 32.
77 The concept of exclusivity fit with role differentiation and functional specialization because the practice of a profession was seen as involving the mastery of a pool of technical knowledge. As a general rule, greater specialization increases the quality (both in breadth and depth) of a pool of specialized knowledge. 328 Exclusive control over a domain of professional activities can therefore act as blinders do on racehorse: they keep professionals focused on their area of expertise and the task at hand. Instead of constantly checking to see what their colleagues from other professions are doing (whether out of curiosity or a inclination to keep an eye on others) professionals are encouraged to master and perfect their skill set to the utmost.
Some aspects of the Commission’s recommendations were more nuanced regarding the role differentiation and functional division of professionals and professional disciplines, for at least three reasons. First, the Commission recognized that healthcare was increasingly delivered by teams of people.329 Second, it recognized that increased scientific expertise and specialization risked creating hermetic disciplinary silos, which were seen as a problem.330 Third, it recognized that professions should not be regulated in isolation (“en vase clos”) from the rest of society and other professions.331 Consequently, the Commission recommended that professional law contain more flexible scope of practice definitions for professional activities that were team-based or undertaken in highly organized environments that provided for sufficient oversight of professional activity.332 It also recommended that the power to create specialties be limited, no doubt to avoid disciplinary fragmentation through
328 See e.g. CNC Report Volume IV, supra note 198, t 1 at 113. I am stating this as a “general rule” because, for the first half of the twentieth century, medical specialization was usually seen as a good (and inevitable) phenomenon, one that was tied to scientific progress; see George Weisz, Divide and Conquer: A Comparative History of Medical Specialization (Oxford: Oxford University Press, 2006) at xiii. Note furthermore that medical specialization has long been health policy in the United States; see Rosemary A Stevens, “Medical Specialization as American Health Policy: Interweaving Public and Private Roles” in Rosemary A Stevens, Charles E Rosenberg & Lawton R Burns, eds, History and Health Policy in the United States: Putting the Past Back In (Piscataway, NJ: Rutgers University Press, 2006) 49 at 73. 329 CNC Report Volume VII, supra note 91 at 62 (“de nos jours les services professionnels sont de plus en plus prodigués par des équipes de praticiens les plus divers”); CNC Report Volume IV, supra note 198, t 1 at 117 (“l’équipe de la santé” is cited as a “modern” way of organizing healthcare); CNC Report Volume IV, supra note 198, t 2 at 32–33. 330 CNC Report Volume III, supra note 182, t 1 at 234; CNC Report Volume IV, supra note 198, t 1 at 113–114, 117. 331 CNC Report Volume VII, supra note 91 at 47. 332 Ibid at 46, 54.
78 overspecialization.333 In sum: it appears that the Commission recognized that healthcare teams could not and should not be structured in an individualistic way, as if they were automobile assembly lines.334
Functional differentiation and specialization remained important nonetheless, even in a context that required innovative teams and work organization: “le régime de la santé et le système d’enseignement auquel il se rattache doivent former les divers types de personnel requis pour des fonctions précises et innover dans la composition des équipes de la santé et dans la répartition des tâches et des responsabilités.”335 Furthermore, even though healthcare teams would have to be organized under a common objective, the teams would include members with complementary expertise and work in a coordinated fashion. 336 Taken together, these elements can also be read as reflecting the Commission’s commitment to the ideas of functional differentiation and specialization.
v. Aftermath of the Commission’s Report
The Castonguay-Nepveu Commission’s impact went beyond the publication of its Report: several of the Commission’s members and collaborating consultants entered the government or obtained important positions within the public service, with some of them building entire careers within the healthcare system or related public services.337 This ensured that the reforms adopted in the years following the Commission’s Report would be as consistent as possible with the Commission’s recommendations.
Among the members of the Commission that entered the government, Claude Castonguay was the most notable. In 1970, he became minister of both ministries charged with implementing the Commission’s proposed reforms: the ministère de la Santé and the ministère de la Famille et du Bien-être social, of which he orchestrated the merger into a single
333 Ibid at 60–61; CNC Report Volume IV, supra note 198, t 1 at 113. 334 CNC Report Volume IV, supra note 198, t 1 at 113–114, 117; CNC Report Volume IV, supra note 198, t 2 at 33. 335 CNC Report Volume IV, ibid, t 2 at 34 [emphasis added]. Note that disciplinary specialization within the universities had increased significantly during the Quiet Revolution, following a process of reform that began in 1961 with the Parent Commission. This Commission also favoured “rationalization” and functional specialization to avoid overlap between disciplines. See Prud’homme, “Parent,” supra note 105 at 88–89. 336 CNC Report Volume IV, ibid, t 2 at 32–33, 73. 337 Marc Renaud, “Les réformes québécoises de la santé ou les aventures d’un état « narcissique »” in Peter Keating & Othmar Keel, eds, Santé et Société au Québec: XIXe-XXe siècle (Montréal: Boréal, 1995) 189 at 193 [Marc Renaud 1995]; Prud’homme, “Parent,” supra note 105 at 90–91.
79 ministry—the ministère des Affaires sociales. The Commission, therefore, had a very powerful hand in government.
Castonguay was very involved—with some of his ex-Commission collaborators—in the reform process, overseeing and guiding the many legislative reforms—including many technical aspects—that took place in the first few years of the 1970s.338 Indeed, a big wave of legislative and administrative reforms quickly followed in the Commission’s wake: the entire legislative structure of the health and social services sectors was reviewed, passing through the prism of the Commission’s social-democratic ideals in the process.339 Castonguay and his collaborators went about drafting the Act Respecting Health Services and Social Services, adopted in 1971. This statute truly integrated the Commission’s principle of functional differentiation of tasks at the administrative level of the healthcare system, in order to avoid the duplication of services.340 Of course these legislative and administrative reforms also impacted the professions.
The professional system—and in particular the fundamental features that I describe in Chapter 1—was created shortly after the Commission’s Report. The year 1973 saw the adoption of Professional Code, 341 the adoption or significant modification of all statutes concerning exclusive professions recognized at the time,342 and the creation of the Office des professions—the whole only three years after the publication of Volume VII of the Commission’s Report.343
René Dussault was one of Castonguay’s close collaborators and a key architect of the professional system, ultimately becoming the Office des professions’ first president in 1973 (holding the position until 1977).344 Dussault, a lawyer and holder of doctorate from the London School of Economics, was deeply involved in many steps of the professional system’s genesis: he was the Commission’s legal counsellor, and very active in Sheppard’s
338 Julien Prud’homme, “Parent,” supra note 105 at 90–91. 339 Marc Renaud 1977, supra note 205 at 128, 138–139. 340 Prud’homme, “Parent,” supra note 105 at 90–92; Prud’homme, Professions à part entière, supra note 42 at 83. 341 Bill 250, Professional Code, 4th Sess, 29th Leg, Quebec, 1973 (assented to 6 July 1973). 342 For example: the Medical Act, supra note 10, the Nurses Act, supra note 10, and the Pharmacy Act, supra note 10, were adopted in 1973; the Act Respecting the Barreau du Québec, CQLR c B-1, and the Engineers Act, CQLR c I-9, received substantial amendments. 343 Marc Renaud 1977, supra note 205 at 138–139; Prud’homme, “Parent,” supra note 105 at 90–95. 344 Prud’homme, “Parent,” ibid at 92–94; Office des professions du Québec, “25 ans,” supra note 164 at 23.
80 work—by drafting Sheppard’s mandate, counselling Sheppard’s team, providing the Commission with a synthesis of Sheppard’s report and orienting the Commission’s recommendations in light of Sheppard’s report.345 Dussault was key in the Commission’s decision to examine professional law beyond the boundaries of the healthcare system, which ultimately led to the Commission’s recommendations in favour of a single statute—the Professional Code—governing the entirety of what would become the professional system. Such recommendations were, of course, informed by the Commission’s centralizing and systemic vision—a vision in which the functional differentiation of task held a preeminent position. Dussault also participated in the drafting of Bill 250346—which would later be adopted as the Professional Code—and was involved in preparing the English translation of the Professional Code. It was Castonguay—then member of the government’s executive council and minister in charge of applying the Professional Code—who named Dussault as president of the Office des professions.347 Castonguay wanted to be certain that the professional system’s reform would be implemented in the spirit within which it had been conceived.348 In light of the foregoing, it comes as no surprise that the Commission is seen as the originating inspiration and driving force behind the creation of the professional system—the system’s founding myth appears to be grounded in fact.
Before moving on, I must address the following important issue: according to some observers, the reforms that were ultimately adopted and implemented fell short of the Commission’s lofty and idealistic social-democratic discourse.349 In other word: there were several gaps between, on one hand, the lofty ideals espoused in the Commission’s discourse, and on the other hand, the concrete reality of the reforms once they were implemented. These observed gaps may seem to contradict the story told above. And in light of these observed gaps, one might argue that the Commission’s discourse is of little use in advancing our understanding of the professional system as it now stands—thereby casting doubt on this essay’s utility by limiting the Commission’s discourse to a mere historical curiosity with
345 CNC Report Volume VII, supra note 91 at 5; Sheppard, supra note 225, t 1 at 12, 19; Prud’homme, “Parent,” supra note 105 at 92–94. 346 Bill 250, supra note 341. 347 Office des professions, “25 ans,” supra note 164 at 23. 348 Julien Prud’homme, “Parent,” supra note 105 at 95. 349 See generally Mulazzi, supra note 38; Marc Renaud 1977, supra note 205; Prud’homme, Professions à part entière, supra note 42 at 79.
81 little relevance to contemporary problems related to interprofessional care. I argue that this is the wrong conclusion to draw from the observed gaps’ existence, for the following reasons.
The gaps between “ideology” and “tangible results” can be explained by the fact that the Professional Code—along with the rest of the legislation that would comprise the professional system—was adopted following a period of intense lobbying by various professional associations, during which each association sought to protect its “territory.”350 Indeed, Bill 250 (and 23 related bills) was submitted to a special parliamentary commission shortly after its initial presentation to the legislature. This parliamentary commission engaged in a considerable review exercise, for it had 23 members, received 228 memorandums, heard 295 interest groups and discussed 104 memorandums during 23 public hearings. 351 It therefore comes as no surprise that the proposed bills were modified. For example, physicians obtained some concessions in the consultation process, and certain dispositions concerning other healthcare professions were modified.352 In sum: the end product fell short of the Commission’s stated ideals.353 With respect to professional law specifically, it seems reasonable to conclude—at least with respect to some aspects—that the end product was as much the product of parliamentary opposition groups and interest lobbies as it was the product of the Commission’s vision.354
It is therefore fair to say that the legislation that was finally adopted, following the review by special parliamentary commission, was the product of a long process of study, inquiry, discussion and reflection.355 It is also fair to say that this long process led to the creation of gaps between the Commission’s initially espoused ideals and concrete reality. However, these gaps have little bearing on my argument.
The overall legislative structure adopted in the wake of the Commission’s Report was greatly inspired by the Commission’s discourse. The fundamental features of the professional legislation adopted following the Commission’s Report—as I describe them in
350 See e.g. Gaumer, supra note 105 at 154–155. 351 Office des professions, “25 ans,” supra note 164 at 21–22. See also Prud’homme, “Parent,” supra note 105 at 95. 352 Julien Prud’homme, “Parent,” ibid at 95. 353 Marc Renaud 1977, supra note 205 at 139ff. 354 Mulazzi, supra note 38 at 60. 355 Office des profession, “25 ans,” supra note 164 at 22.
82 Chapter 1—exhibit the following key ideas: protection of the public, functional differentiation of tasks (in the form of exclusive scope of practice) and systemic integration. These fundamental features of the professional system—and the ideas that informed them— were present from very the beginning of the professional system in 1973. Writing on the review process undertaken before the proposed legislation was adopted, Julien Prud’homme—a historian of Quebec professions—writes that “[s]ur le fond, le projet [de loi] a peu changé.”356 The fundamental ideas of functionally differentiated tasks, categorized experts and integrated systems (as well as public protection, of course) remained in the legislation that was finally adopted, ready to be implemented by Dussault as president of the Office des professions—as well as Castonguay’s collaborators elsewhere in the public service. In addition, since the revision process involved the constant recirculation of draft bills, alongside a constant articulation and re-articulation of the reform’s mechanics and objectives, the revision process quite possibly contributed to reinforcing the importance of these fundamental ideas in the eyes of all parties involved.357
Marc Renaud, a sociologist writing only a few years after the implementation of the Commission’s recommended reforms, notes that “le rapport de la Commission d’enquête sur la santé et le bien-être social devint la perspective gouvernementale officielle sur la réforme de la santé . . . Dans aucune autre province canadienne, le point de vue formulé par une commission d’enquête ne devint si rapidement et si totalement la matrice intellectuelle fondamentale pour engendrer le changement.” 358 Despite being very critical of the gaps he observed,359 Renaud does not deny the ideological force of the Commission’s discourse and the role it played in the reforms that followed. Note finally that the gaps observed by Renaud are more general and concerned with healthcare as whole, whereas I am specifically concerned with the impact of the Commission’s discourse on professional law and interprofessional care. Pierrette Mulazzi (also a sociologist) also observed gaps in certain areas professional law, but she left several other areas of professional law out of her analysis, namely: the Commission’s rejection of a hierarchical organization of the professions (which
356 Prud’homme, “Parent,” supra note 105 at 95. 357 Ibid at 95. 358 Marc Renaud 1977, supra note 205 at 138 [emphasis added]. 359 See generally Renaud 1977, ibid; Renaud 1995, supra note 337.
83 is an area that has important implications for interprofessional care).360 This further limits the observed gaps’ impact on my argument.
In other words: regardless of the observed gaps, the Commission’s discourse and ideology deeply marked the reforms that took place in the years following the publication of its Report, for the following two reasons. First, the Commission articulated its vision in great detail, espousing technocratic, social-democratic and universal values. These values were very salient at the time, and inevitably had an influence on how all actors involved in the reform process—government, opposition and lobby groups—perceived the reform’s ends of means. Second, key members of the Commission were involved in the implementation of the reforms, and they were able to guide this implementation through the high offices they held. Indeed, writing on the history of the reforms that followed the Commission’s Report, Prud’homme writes: “Au cœur du récit, on identifie . . . un petit nombre d’acteurs qui manifestent une adhésion consciente, militante, à l’idée de différentiation fonctionnelle, qui y adossent leur carrière . . . par exemple René Dussault et Claude Castonguay.”361
§D. CONCLUSION TO CHAPTER 2
This concludes my exposé of the historical origins of Quebec’s professional system—a system conceived to be part of what would become Canada’s most integrated healthcare system at the time.362 In mentioning Canada here, I acknowledge that the history I have told is wanting with respect to important developments that took place throughout the country during the 1960s. For example: I only mentioned Saskatchewan in passing—namely the physicians’ strike that took place in that province. Yet the fact that Saskatchewan implemented the first public healthcare system in North America is significant, and no doubt influenced healthcare debates across Canada at the time.363 I also omitted discussing the Royal Commission on Health Services—or Hall Commission, as it was named after its president Justice Emmett Hall. The Hall Commission was mandated by the Federal
360 Mulazzi, supra note 38 at 58, n 6 and accompanying text. 361 Prud’homme, “Parent,” supra note 105 at 95. 362 Ibid at 92. 363 See generally C Stuart Houston & Merle Massie, 36 Steps on the Road to Medicare (Montreal: McGill-Queen’s University Press, 2013) at xviii, 138-141; Georgina Feldberg, Robert Vipond & Toba Bryant, “Cracks in the Foundation: The Origins and Development of the Canadian and American Health Care Systems” in Toba Bryant, Dennis Raphael & Marcia Rioux, eds, Staying Alive: Critical Perspectives on Health, Illness and Health Care, 2nd ed (Toronto: Canadian Scholars’ Press, 2010) 267 at 272–273.
84 Government in 1961, and undertook “the most comprehensive study of the health services of any country that had been done up to that time.”364 The Hall Commission’s report greatly influenced the discussion of healthcare throughout the country, and led to Canada’s national system of funding for public health insurance.365 The Castonguay-Nepveu Commission discussed the issue of constitutional jurisdiction over health and social services, and criticized federal incursion into professional regulation.366 In this context, the Professional Code was not only a means of creating a more coherent and rigorous system of professional regulation, it was also a means of vigorously affirming provincial competence over professions and professional organization.367 Nor did I discuss parallel developments occurring in Ontario, and the voluminous report produced by the Committee on Healing Arts in 1970.368
A more complete (in both scope and detail) examination of the historical context would certainly be valuable—it would give us, among other things, an even greater appreciation of the “structured contingency”369 of the professional and healthcare systems in Quebec, and a more subtle understanding of the policies and laws that structure these institutions. But such an examination would go far beyond what is necessary for my purpose. I have exposed enough to ground my critique, unsettle current understandings and expose errors in our current thinking—errors that I argue we have inherited from the past. Furthermore, despite its narrowness, my focus on Quebec is justified because I am particularly concerned with its professional system, whereas the historical topics just mentioned principally revolve around healthcare. Finally, I am chiefly concerned with the official discourse surrounding the professional system: the words and ideas that today’s professional system and law have inherited from the Castonguay-Nepveu Commission. With these remarks in mind, I now turn to my critique.
364 Jack Boan, “A Brief Retrospective on the Royal Commission on Health Services” in Gregory P Marchildon, ed, Making Medicare: New Perspectives on the History of Medicare in Canada (Toronto: University of Toronto Press, 2012) 291 at 293. 365 Boan, ibid at 291–294; Gaumer, supra note 105 at 101–103. 366 See CNC Report Volume I, supra note 174 at 187ff; CNC Report Volume VII, supra note 91 at 30–31. See also Villeneuve, Dubé & Hobday, supra note 8 at 4. 367 Villeneuve, Dubé & Hobday, ibid at 4. See also François Guérard, Histoire de la santé au Québec (Montréal: Boréal, 1996) at 81–82. 368 See Committee on the Healing Arts, Report (Toronto: Queen’s Printer, 1970). 369 See supra notes 109 to 113 and accompanying text.
85 CHAPTER 3. STRUCTURED CONFLICTS
The two preceding chapters map out the conceptual terrain upon which I build the rest of my analysis and critique. Recall the basic features of this terrain:
(1) Quebec professional law constitutes a professional system, which consists of a main statute—the Professional Code—completed by a number of profession-specific statutes and regulations.
(2) This system is structured around two types of professions—exclusive professions and professions with reserved titles—and governed by a uniform and integrated set of institutions.
(3) The professional system’s official main objective is to protect the public, and this objective legitimizes the state’s grant of power unto professional orders in the form of a monopoly—exclusive control over titles and activities, or only titles.
(4) The professional system was created within the overall context of the Quiet Revolution—an important historical period and turning point in the development of Quebec society during which the state greatly expanded its activities and interventions.
(5) The Castonguay-Nepveu Commission conceived the professional system in the context of an even larger project: that of creating a complete health and social services system for the province.
(6) This larger health and social services project was heavily informed by a number of fundamental ideas expressed in the Commission’s discourse. Many of these ideas were lofty social-democratic ideals,370 such as: adapting society’s institutions to make the best of a new socioeconomic reality, maximizing social development and human flourishing, and implementing a global conception of medicine. Other ideas were managerial and technocratic,371 such as: increasing state involvement in almost all areas of life in ways that were highly integrated, coordinated, systematic, even cybernetic.
370 Marc Renaud 1977, supra note 205 at 128. 371 Bergeron & Gagnon, supra note 168 at 17–24.
86 (7) The Commission’s discourse constituted the “fundamental intellectual matrix” upon which Quebec’s professional law would come to be structured. The impact of the Commission’s discourse on the laws and policies that came to be implemented in its wake was assured by the presence of individuals involved in the Commission— most notably Claude Castonguay and René Dussault—within the government and high offices in the civil service.
These points roughly follow the structure of the two preceding chapters. They are, of course, not comprehensive, and meant only as a synthetic reminder.
I now expose my critique of Quebec professional law as an obstacle to interprofessional care. This Chapter is divided into three Sections. In the first two Sections, I show how the Castonguay-Nepveu Commission’s discourse reflects the three interrelated “structured conflicts”—conflicts built into the very structure of the healthcare system— briefly described above.372 The first conflict, discussed in Section A, is that of boundary identification—or the constant process of identifying the place where one healthcare issue ends and another issue begins. I show how the rigid boundaries erected by professional law create dynamics that separate different professionals from each other in the context of clinical practice. This in turn has pernicious effects on the way healthcare is organized, the way the healthcare system evolves to meet healthcare needs, and ways in which interprofessional care can—or cannot—be implemented. The two other conflicts, discussed together in Section B, are (i) the decentralization and fragmentation of power within the healthcare system, and (ii) the fact that social hierarchy, status and power are embedded in the institution of medicine. I argue that medicine is in a dominant legal position with respect to all other healthcare professions, and that this fuels rivalry between the professions, who all seek greater recognition and a secure place within the healthcare system. I then argue that these dynamics are the tied to conceptual structure developed in the Castonguay-Nepveu Commission’s Report, and that future interprofessional care initiatives must eschew this conceptual structure if they are to be successful.
372 Supra note 120–125 and accompanying text.
87 §A. BOUNDARY IDENTIFICATION
The challenge of identifying boundaries permeates most levels of healthcare law and policy. This challenge’s ubiquity within healthcare mostly stems from the fact that the concept of “health” is potentially limitless. As mentioned above, “health” imposes no positive limit on the types of policies that could be implemented in its name. Consequently, it is necessary to identify boundaries between what counts as “health policy” (or “health law”: in this context the words “policy” and “law” can be used interchangeably) as opposed to other big ideas such “economic policy,” “social policy,” “justice policy” and even “defense policy.” 373
Moving away from the most general level, boundaries must also be identified between macro-level ideas within health policy itself, and the proper corresponding jurisdictions charged with carrying it out, for example: between “medical” and “socio- psychological” mental health issues, between legal and illegal drugs, and between “private” illnesses and public health threats. The following questions illustrate the need for boundary identification: Is the fact that many children go to school hungry a failure of public health, economic, social or educational policy? Should obesity be dealt with on an individual level with clinical interventions, or is it a public health or social-policy problem? What about cigarettes? Is violence a public health problem or a criminal justice problem? Should drug addicts be the responsibility of psychiatrists and psychologists, or that of social workers, or the police? 374 Of course the complex and layered reality of these issues means that these question may legitimately be answered in many ways. But identifying boundaries is nonetheless necessary in order to enact law and policy.
Identifying the boundaries that separate these ideas is necessary in order to apportion: (i) authority and responsibility (via legally recognized jurisdictional power or some other form of social sanction), and (ii) resources. Ideally, this apportionment is done in ways that strike a balance between social priorities—insofar that they can be determined—and available resources. Although necessary, the boundaries identified “are bitterly contested at many levels and on many battlefields,”375 and are consequently always open to some form of
373 See Rothstein 2002, supra note 218. 374 Rosenberg, supra note 109 at 25–26. 375 Ibid at 25–26.
88 revision. Maintaining or moving identified boundaries is a continual process of negotiation and compromise between all those concerned.
Professional law and organization also play an important part in identifying many different boundaries around and within healthcare. This is most striking in the case of the medical profession, as illustrated by questions such as: What does the practice of medicine consist of—what sorts of practices does it normally include? How do other professions relate to the practice of medicine? Who should control medical practice—the state, private associations, institutions that are somewhere in between such as professional orders, or a mix of all? What should be the nature and extent of the control exercised over individual medical professionals? Should medical specialties be recognized and how should they develop? In the context of a public healthcare system such as in Quebec: what fees can physicians charge their patients (on top of the overall remuneration they receive from the state), and costs must they “absorb” as a part of “doing business”?376
I focus here on the necessity of identifying boundaries between different professions’ scopes of practice—and therefore between professionals themselves. I argue that identifying precise and strongly demarcated boundaries in professional law was necessary in light of the Commission’s discourse, and that this has acted as a barrier to the implementation of interprofessional care ever since. In other words: the Commission’s discourse (i) made boundary identification between professions a central element of professional organization, and (ii) remained a powerful conceptual framework legitimizing boundary identification—or exclusive scopes of practice—in professional law.
Of course many other types of boundaries would need to be drawn in order to implement the Commission’s vision of a professional system—most notably boundaries between the respective jurisdictions of the different institutions within the professional system, such as: the Office des professions, the Interprofessional Council, the Professions Tribunal, and the different institutions within professional orders themselves. But my focus on the necessity of drawing boundaries between different professions is justified because, as explained above, exclusive scope of practice is the central axis around which the professions
376 This last question has been the subject of much controversy over the past few years; see generally Tommy Chouinard, “Québec veut bannir les frais accessoires”, La Presse (2 May 2016) online:
89 are organized—it is the most evident boundary-identifying mechanism in Quebec’s professional system. Exclusive scopes of practice play a central role in shaping professional practice, and are therefore central in shaping interprofessional practice, because they define what professionals can and cannot do—a process that begins even before they begin to work, since exclusive scopes of practice shape professionals’ education and on-the-job training. 377 . Exclusive scopes of practice are also highly visible, both to professionals themselves and to the public, because they are enforced via penal law.
i. Boundaries and the Commission’s Discourse
The fact that professional law needed to identify boundaries between the professions in order to implement the Commission’s vision was a natural consequence of the Commission’s discourse and recommendations—a consequence that flowed from at least two key elements of the Commission’s Report. First, boundaries were necessary in order to respect the Commission’s vision of systemic complementarity and the functional division of tasks. Second and relatedly, boundaries needed to be drawn between healthcare professions in order to respect the Commission’s endorsement of exclusive scopes of practice.
In other words: in order to create a system composed of complementary and functionally differentiated elements, it was necessary to define and demarcate the basic elements of the system—for a true system can only arise out of an undifferentiated mass of elements if certain elements within the mass are parsed, individualized, identified and classified following a rational, Cartesian-like grid. The professions, being the basic elements of the professional system, therefore needed to be clearly defined and demarcated from one another.
The Commission envisioned a rational and scientific process of identification, classification and demarcation of all healthcare personnel, insisting on the importance of conducting research that would allow “une définition plus appropriée des rôles de chaque catégorie du personnel de la santé.”378 This research was important because “l’évaluation des
377 Gilbert, supra note 1 at 94 (“Regulation of health professions . . . must be recognized within, and accommodated by, post-secondary programs”). 378 CNC Report Volume IV, supra note 198, t 3 at 80 [emphasis added]. On the Commission’s “scientific” approach, see Louis Lebel, “La Commission Castonguay-Nepveu: Recours à la pensée scientifique et négociations fédérales-provinciales sur le partage des compétences en matière de santé, 1966-1972” (2008) 17:1 Bulletin d’histoire politique 247, online:
90 tâches des diverses catégories de personnel devine un élément de base sur lequel s’appuient la réorganisation des centres de santé.”379 Classifying occupations was “le point d’arrivée d’un ample programme de recherche qui comprend l’analyse systématique des tâches, avec définition des qualités et titres nécessaires pour leur accomplissement et des substitutions possibles entre les divers types et niveaux de personnel.”380
Once the process of definition and demarcation—or boundary identification—was completed, the boundaries were to be formalized and made official in law via exclusive scopes of practice. Indeed: recall that the Commission saw professional law as a means of legally recognizing activities within society.381 This is just another way of saying that the law categorises activities and the people who carry them out—legal recognition is a means of categorization. Going even further, I posit that professional law reifies conceptions of different professions’ practice by entrenching definitions of professional practice in the law via scope of practice definitions. By stating that the practice of medicine constitutes X, the practice of nursing constitutes Y, and the practice of chiropractic constitutes Z, the law fixes boundaries around these professionals’ activities. Professionals, knowing that they cannot overstep these legal boundaries, must behave accordingly or face penal sanction. Therein lies the reifying force of professional law’s scope of practice definitions: the conceptual boundaries created by these definitions become very real boundaries in practice because they shape professional behaviour through coercion. The examples that follow illustrate the extent to which scope of practice definitions create rigid boundaries in practice.
ii. Examples
In this subsection I give two striking examples of how boundary identification operates between professionals and professional disciplines: how professional law reifies and creates a mentality of strict separation between professionals’ “jurisdiction”—or authority— over a parcel of the concept of “health.” My first example illustrates the operation of
91 boundaries between medicine and so-called “alternative” health occupations—more specifically massage therapy. My second illustrates the operation of boundaries separating professions from each other—more specifically the medical profession and the chiropractic profession.
In the case of Corp. professionnelle des médecins du Québec c St-Amant382 a massage therapist, Claude St-Amant, was found guilty on 31 counts of having illegally practiced medicine, in contravention of sections 31, 43 and 45 of the Medical Act. All 31 counts were related to individual massage treatments given by St-Amant to one woman, Francine Tardif, in between the months of August 1984 and March 1985. Tardif initially came to see St-Amant after having overexerted herself physically while painting a new home. Having sore muscles, feeling very fatigued and having difficulty moving, she searched for a massage therapist in the phone book and found St-Amant’s name. She first made an appointment with him believing that massages would help her relax and feel better. St-Amant massaged Tardif 31 times at his massage clinic, where his massage therapy and reflexology diplomas were in plain sight; there was no evidence suggesting that St-Amant claimed to be a physician or anything other than a massage therapist. St-Amant massaged Tardif’s back and “sometimes” her arms, using his hands and a vibrating massage tool (“vibrateur”). Tardif was satisfied with St-Amant’s massages: “cela lui a fait du bien.”383
In its reasons, the Court insisted on the fact that Tardif told St-Amant that she was tired. The Court also found it “inconceivable” that Tardif would not have mentioned the fact that she had sore muscles and experienced pain. The Court further insisted on the fact that St-Amant must necessarily have been aware—or become aware, over the course of the numerous massages he gave—that Tardif experienced pain.384
At the time, section 31 of the Medical Act—which defines physicians’ scope of practice, and used to be numbered as section 29—read as follows:
382 (4 December 1987), St-François 450-27-002750-859 (CqCP sessions de la paix), unreported, available online:
92 29. Every act having as its object to diagnose or treat any deficiency in the health of a human being constitutes the practice of medicine.
The practice of medicine shall comprise, in particular, medical consultation, prescribing of medication or treatment, radiotherapy, attendance at confinements, establishing and controlling diagnosis and treatment of illnesses or diseases.385
Compared to its present version, cited above,386 we see that section 31 of the Medical Act used to be broader. However, the idea at the heart of section 31—the idea that the practice of medicine consists of treating any health deficiency in a person—has remained unchanged since the adoption of the Medical Act in 1973. It is on the basis of this idea—still very alive today—that the Court found St-Amant guilty. According to the Court, St-Amant treated Tardif’s “health deficiency.”387 The Court writes: “la santé . . . c’est l’état de celui qui est bien, qui se porte bien. Par ailleurs, la fatigue, c’est une situation pénible causée par l’effort.”388 And the Court equates fatigue with health deficiency.389
The Court justified its reasoning using Justice L’Heureux-Dubé’s (then of the Quebec Court of Appeal) reasons in Corp. professionnelle des médecins du Québec c Larivière.390 More specifically, the Court cites the following passage:
Le but de la Loi médicale est essentiellement la protection du public (article 26 de la Loi). À ce titre, elle prohibe l’exercice de la médecine par des personnes autres que des personnes qualifiées pour ce faire, les médecins. Le législateur prohibe à cette fin « tout acte qui a pour objet de traiter toute déficience ». Les termes sont clairs et ne souffrent aucune équivoque. Le législateur ne distingue pas entre l’acte ou modèle médical ou
385 Medical Act, SQ 1973, c 46, s 29. 386 Supra notes 16–17 and accompanying text. 387 St-Amant, supra note 382 at 10–11. 388 Ibid at 6. 389 Ibid at 8. 390 [1984] C.A. 365, AZ-84011165, JE 84-613 [Larivière].
93 non, déficience physique ou mentale. Il n’y a pas lieu de distinguer là où le législateur lui-même ne le fait pas.
Le fait de soigner ou de prétendre de soigner par un traitement quelconque est donc exercer la médecine, sous réserve des exceptions prévues à la loi, et qui ne sont pas ici en cause.391
This interpretation of section 31 of the Medical Act was not only applied in the St-Amant case, but was also applied or cited with approval in a number of cases and remains the dominant interpretation of section 31.392 This passage exhibits a very rigid demarcation between “medicine” and “not medicine,” as well as an all-encompassing view of physicians’ scope of practice. This impression is especially reinforced in light the following passage, which immediately follows the passage just cited:
Pour qu’un individu exerce la médecine, il importe peu qu’il soit en présence d’un patient souffrant véritablement d’une déficience de la santé. Il suffit qu’il traite une personne croyant ou prétendant souffrir d’une telle déficience. Ce qui importe, c’est l’intention de traiter ou de vouloir traiter un patient qui se dit atteint par une maladie ou qui se croit atteint par une affection nécessitant des soins, même si en fait, il ne souffre pas de telle affection, et même si son état ne requiert aucun soin médical.
La valeur thérapeutique des traitements ou moyens utilisés . . . ne sont pas non plus pertinents.393
In light of such words, it is very difficult to imagine the types of caring acts that would not be considered medicine. Similarly, it is difficult to imagine how any non-professional could pose
391 Ibid at p 2–3, L’Heureux-Dubé JA, dissenting [emphasis in original]; cited in St-Amant, supra note 382 at 9– 10. 392 See Collège des médecins du Québec c Galipeau, 2008 QCCS 2983, AZ-50500363, JE 2008-1471 at paras 16–19; Corp. professionnelle des médecins du Québec c Drolet (1991), AZ-91021504, JE 91-1385 (QcCS) at 2–3; Grenier c Collège des médecins du Québec, 2006 QCCS 622, AZ-50355064, at paras 26, 27; Javanmardi c Collège des médecins du Québec, 2013 QCCA 306, [2013] RJQ 328, JE 2013-396, rev’g on other grounds Collège des médecins du Québec c Javanmardi, 2010 QCCS 2279 at para 94; Collège des médecins du Québec c Leduc, 2012 QCCQ 3 at para 33. 393 Larivière, supra note 390 at p 3, L’Heureux-Dubé JA, dissenting.
94 any caring act without illegally practicing medicine. In light of such an interpretation, a massage therapist like St-Amant simply had no chance!
One might argue that the decision in St-Amant is a marginal case: an example of overly formalistic reasoning or overly zealous (even abusive) prosecution by the Order of physicians. But the Court’s rhetoric in St-Amant suggests that more is at play, especially the following passage:
Et si Francine Tardif avait souffert d’une tumeur cérébrale ? Et si elle avait été atteinte de mononucléose, de déséquilibre glandulaire, de leucémie, d’anémie, de désordre regardant la psychologie ou la psychiatrie ?
La grande lassitude et la fatigue profonde et constante de madame Tardif auraient fort bien pu requérir autre chose qu’une simple palpation aux muscles dorsaux et brachiaux ou qu’une élémentaire danse de vibrateur. En plus, elle avait de la difficulté à se mouvoir.394
This passage, and the decision it supports, both signal a very strong acceptance of exclusionary boundaries between different categories of professionals, or between professionals and non-professionals. The same can be said of above-cited passages by Justice L’Heureux-Dubé: her words endorse a view of professional scopes of practice as identifying (or establishing) very clear and rigid boundaries between (i) different professionals and (i) professionals and non-professionals. Taken together, these passages—and the law on which they are based—imply the following: the question of whether or not one may undertake any activity regarding the health of anyone is first and foremost a question of law, not a question of fact. Note as well that the rhetoric of the last-quoted passage also depicts St-Amant’s work as inferior to that of medical professionals: his work is described reductively as “simple palpation” and “elementary dance”—hardly a description of valued healthcare work.
394 St-Amant, supra note 382 at 9.
95 My next example is the Quebec Superior Court’s decision in the case of Association des chiropraticiens du Québec c Office des professions du Québec.395 In this case, an association representing chiropractors in Quebec—and not the Order of chiropractors—sought a declaratory judgment to clarify the legal status of certain activities undertaken by chiropractors. More specifically at issue was chiropractors’ legal capacity to request biomedical laboratory tests, and to use these tests as part of diagnosing the underlying causes of pathologies within their scope of practice. Relatedly, the chiropractors’ association wanted notices sent by the Office des professions to the Université du Québec à Trois-Rivières (UQTR) and private laboratories to be declared illegal. These notices warned the UQTR and the laboratories that they should not fulfill laboratory analyses prescribed by chiropractors.
In order to resolve the issue, the Court needed to reconcile section 31 of the Medical Act with sections 6 and 7 of the Chiropractic Act—these latter two sections defining chiropractors’ scope of practice. Section 31 of the Medical Act read as it did in the St-Amant case (cited above396), whereas sections 6 and 7 of the Chiropractic Act read (and still read) as follows:
6. Every act the object of which is to make corrections of the spinal column, pelvic bones or other joints of the human body, by use of the hands, constitutes the practice of chiropractic.
7. A chiropractor may determine by clinical and radiological examination of the spinal column, pelvic bones and other joints of the human body, the chiropractic treatment indicated.
However, a chiropractor shall not make radiological examinations unless he holds a radiology permit issued in accordance with section 187 of the Professional Code (chapter C-26).397
395 [2003] RJQ 1306, EYB 2003-41479, 2003 CanLII 25554 (QcCS) [Chiropraticiens 2003]. 396 Supra note 385 and accompanying text. 397 Chiropractic Act, supra note 10, ss 6, 7.
96 The Court was faced with what it considered to be a semantic problem: on the one hand these sections did not include the word “diagnostic,” but on the other hand these sections implied that chiropractors were necessarily allowed to undertake diagnostic-like procedures in accordance with chiropractic practice in order to be able to determine the indicated chiropractic treatment. Faced with the fact that section 31 of the Medical Act clearly reserved “diagnosis” to physicians, the Court distinguished “medical diagnosis” from “chiropractic diagnosis,” and concluded that only physicians could call their activities “diagnosis.” In other words: the Court concluded that chiropractors could conduct “diagnoses,” but that they could not refer to them as such.398 The Court also concluded that prescribing biomedical laboratory analyses fell outside chiropractic practice. Such analyses were related to diagnosis and treatment of pathologies or anomalies falling inside physicians’ scope of practice, and outside the types of problems that could be remediated by making corrections of the spinal column, pelvic bones or other joints by the use of one’s hands.399 The Court found added support for its conclusion in the fact that section 7 of the Chiropractic Act mentioned only clinical and radiological examinations, and was silent on biomedical laboratory analyses.400
As in the St-Amant case, the Court’s rhetoric in the Chiropraticiens case is striking— striking in support of its reasoning, in support of the rigidity of the boundaries it draws around chiropractic practice, and in support of the contrast between the relative narrowness of these boundaries as compared to physicians’ practically limitless scope of practice. Towards the end of its decision, the Court cites a journalist’s thoughts on the complexity of living things (published in L’Actualité, a popular monthly news and current events magazine in Quebec); part of the citation reads as follows: “Une des limites de la science biomédicale vient du fait que les processus du vivant, qu'ils soient normaux ou pathologiques, sont d'une vertigineuse complexité.” 401 The Court then uses this to justify its reasoning regarding physicians’ exclusive power to prescribe and use biomedical laboratory analyses: “eu égard à la nature des pathologies qu’elles visent à révéler, et sans doute aussi à la très grande complexité
398 Chiropraticiens 2003, supra note 395 at paras 47–65. 399 Ibid at paras 66–71. 400 Ibid at paras 77–83. 401 Ibid at para 101.
97 de l’univers dont elles ouvrent les portes, les analyses biomédicales demeurent strictement balisées par la loi.”402
In other words, the courts in both St-Amant and Chiropraticiens 2003, aware of the inordinate rigidity of the boundaries that they must apply to a rich and ambiguous reality,403 justify their decisions using shock-and-awe rhetoric. In St-Amant the reader is told that fatigue and muscle soreness could be the sign of shocking problems such as a brain tumour, leukemia, or a psychiatric disorder. In the Chiropraticiens case, the reader is invited to marvel at the vast complexity of the biomedical universe—a universe so vast and so complex that only physicians may travel it unencumbered, their science being unconfined (perhaps even unconfinable!) to professional law’s boundaries.
The Chiropraticiens 2003 case is particularly interesting because it shows the extent to which boundaries can be raised between professions: boundaries can exist not only on what I call a “functional–operational” level, but also the “conceptual–semantic” level. The boundary on the functional–operational level is obvious: the law prevents chiropractors form prescribing biomedical laboratory analyses as part of their practice. Chiropractors are, therefore, confined within that boundary as they go about their operations (i.e. their activities). And if we imagine an interprofessional team or environment in which chiropractors operate among other professionals, whatever function chiropractors can play within such an environment or team will exclude prescribing biomedical analyses. As for the “conceptual–semantic” level, the court erected a boundary around the term “diagnosis” by finding that the law reserved use of the term itself to the context of medical practice. The legal concept of diagnosis could be associated to no other practice but medical practice.
Note that the Quebec Court of Appeal disagreed with the Chiropraticiens 2003 trial judge’s finding that the law reserved the term and concept of “diagnosis” to physicians.404
402 Ibid at 103 [emphasis added]. 403 Indeed, the Court writes in Chiropraticiens 2003 that physicians’ expansive and exclusive scope of practice was set by the legislature “à tort ou à raison,” that “d’aucuns pourront sans doute trouver [ces balises] trop restrictives dans un contexte contemporain” and that chiropractic science was limited by Quebec law regardless of what one may think the law should be; see ibid at paras 103, 105–106. In St-Amant, the Court wrestles with the fact that the massage therapist St-Amant had given good massages, that his client Tardif was satisfied and felt better, that it was the client that had sought him out and that he operated a well-kept office; see St-Amant, supra note 382 at 4, 6–7, 11. 404 Association des chiropraticiens du Québec c Office des professions du Québec, 2005 QCCA 189, [2005] RJQ 691, AZ-50297424.
98 The Court of Appeal found the trial judge’s reasoning mistaken and overly formalistic in its interpretation and application of the words in sections 6 and 7 of the Chiropractic Act. The Court of Appeal found it “illogical” to assert that chiropractors—who are trained and licensed to operate as independent professionals—could not be allowed to diagnose a problem within their scope of practice.405 On the question of chiropractors’ ability to prescribe biomedical laboratory analyses, the Court of Appeal agreed with the trial judge that they fell outside chiropractors’ scope of practice.
The St-Armand and Chiropraticiens 2003 cases may be extreme examples of boundary identification, but their extremity is precisely what makes them of interest: it illustrates the extent to which the professional system is marked by an ideology of separation. This ideology fully accepts and vigorously defends boundaries that separate professions from each other, and separate professions from occupations. This ideology—firmly in place since the Castonguay-Nepveu Commission and buttressed by the proteiform406 ideal of protecting the public—legitimizes the existence of highly exclusive scopes of practice. At the same time, this ideology acts as an obstacle to interprofessional care, creating boundaries between professionals’ functional–operational capacities in the context of interprofessional environments. Finally, although these two cases are extreme, they are not anomalous: identical dynamics of rigid boundaries separating professions (or professions and occupations) from one another can be seen in other cases.407
405 Ibid at paras 9–16. 406 See Desharnais, supra note 54 at 35–38 (“[la notion de protection du public] intervient dans tous les aspects du système professionnel, en tant que concept organisationnel, comme justification à toutes interventions, comme règle normative et comme règle interprétative. Ce caractère protéiforme résulte de la place centrale qu’elle occupe dans le système professionnel”). On the diverse values informing the notion of protection of the public, see Jean-Guy Belley, “La notion de protection du public dans la réforme du droit professionnel québécois: Une analyse socio-politique” (1980) 21:3–4 C de D 673. 407 See e.g. Vézina c Corp. professionnelle des médecins du Québec, [1998] R.J.Q. 2940, AZ-98011798, 1998 CanLII 12500 (QcCA); Galipeau, supra note 392; Leduc, supra note 392; Ordre des opticiens d'ordonnances du Québec c Association des optométristes du Québec, 2008 QCCA 1193 (on the meaning of the terms “fitting” (“poser”) and “adjusting” (“ajuster”) in the context of opticians’ scope of practice involving contact lenses). These dynamics are not unique to Quebec. Barbara J. Safriet provides two examples of cases from Connecticut and Tennessee concerning podiatrists’ scope of practice—a scope of practice usually defined in podiatry acts as that of diagnosing and treating disorders of the human foot, without defining the term “foot.” The courts in these cases had to determine podiatrists’ scope of practice, and faced a very basic interpretive question: “what is a foot?” In their attempts to answer this question—which required clarifying the ambiguous legal status of the ankle—the courts engaged in interpretive exercises that demonstrate, according to Safriet, “the absurdity of the underlying legal scheme.” See Barbara J Safriet, supra note 14 at 320–323. In the context of these examples, the human body itself becomes the object upon which the law’s boundaries operate, separating its different parts; the law constitutes the human foot as a distinct legal object over which only two groups of people—physicians
99 iii. Separating Legal Authority from Clinical Ability
The examples given in the previous subsection illustrate how the boundaries created by professional law operate when applied to professional practice, and the extent to which these boundaries separate professions from each other (or from occupations). More specifically, these examples illustrate (1) the structuring effect of boundaries on professional practice in the healthcare sector, and (2) how an ideology of separation permeates both statutory and jurisprudential professional law, rationalizing and legitimizing these boundaries when their questionable effects are brought to light. These examples also illustrate how, in the context of an interprofessional healthcare team or environment, the boundaries created by the law prohibit members of a healthcare team from carrying out certain acts, thereby reducing the range of possible ways the team or environment can be organized to carry out its mission.
In this subsection, I describe a more treacherous problem: the fact that the boundaries of professional law prevent the healthcare system from evolving with new healthcare needs, and generate significant amounts of wasted resources—human resources, financial resources and organizational resources. This problem undermines two of the central benefits of interprofessional care, that is: (1) interprofessional care allows the creation of healthcare teams and environments that are better adapted to evolving healthcare needs, and (2) interprofessional care allows for a more optimal use of healthcare resources. I also discuss how, as a result of this problem, professional law’s boundaries act as a barrier to the implementation of interprofessional care.
and podiatrists—have jurisdiction (in the form of diagnosis). However, of these two groups, only podiatrists must worry about the point at which the “legal foot” become the “illegal ankle,” and only in jurisdictions where the law is interpreted as erecting a boundary between the ankle and the foot—hence the underlying absurdity. Although no similarly absurd case appears to have occurred in Quebec, Quebec law certainly has the potential to lead courts to such interpretive gymnastics. First, because the ideology of separation described in this subsection is embedded in Quebec’s professional law and jurisprudence. Second, because the Podiatry Act defines podiatry as “[e]very act which has as its object the treatment of local disorders of the foot which are not systemic diseases,” without defining the term “foot”; Podiatry Act, supra note 10, s 7. There is therefore nothing in the law preventing a podiatrist from being prosecuted for having ventured too far beyond the boundaries of the foot, for those boundaries have yet to be clearly set. Finally, on at least three occasions in Quebec, nurses were prosecuted by the Order of podiatrists for acts performed on people’s feet. In these cases, the crux of the legal issue was whether nurses could perform such acts as part of their own scope of practice; see Ordre des podiatres du Québec c Auger (1 March 2002), AZ-50115054, JE 2002-1041 (QcCQ crim & pén); Ordre des podiatres du Québec c Hébert (29 September 2000), AZ-50079239 (QcCQ crim & pén); Ducap-Bourret c Ordre des podiatres du Québec (7 November 1992), AZ-92021579, JE 92-1580 (QcCS).
100 This problem stems from what Barbara J. Safriet refers to as the gap between the legal authority and clinical ability of healthcare professionals.408 Legal authority (I have also referred to it as a profession’s “jurisdiction”) corresponds to a profession’s scope of practice—what members of the profession are legally allowed to do. Clinical ability refers to the skills possessed by members of any given profession, and therefore the level to which the members of a given profession are able to contribute to the broader healthcare endeavour whether as part of a team, within a larger multi-professional environment such as a hospital, or alone in the context of a private practice.
The gap between legal authority and clinical ability is inevitable because professional law is structured around exclusive scopes of practice. While the law defines the types of professionals that may carry out certain activities, it does not evolve at the same speed as professionals’ ability to carry out activities that go beyond what is defined in the law. In other words: the boundaries of exclusive scopes of practice give rise to the gap.
Legal authority is set in law (or regulations). Consequently, increasing a profession’s legal authority requires legislative or governmental intervention. Such intervention lies, by definition, outside of a profession’s direct control. By contrast, increasing professionals’ clinical ability requires no intervention from outside a profession. Professions can—and often do—take the initiative to increase and improve their members’ training, and therefore improve their skills. In fact, professional orders are required by law to ensure and improve their members’ competence—it is one of professional orders’ fundamental functions. I posit even further that professional orders are also morally required to take initiative and invest resources towards increasing their members’ competence over time. This moral obligation stems from two sources: the first I call “political” morality, and the second is professional morality. Professional orders are required, following political morality, to improve their members’ competence because of the original political “bargain” struck between professions and the state (or society). Under this bargain, professional orders are given privileges— exclusivity and autonomy—in exchange for which they take on the correlative duty to protect the public.409 Ensuring and improving professional competence is surely part of this political bargain: failing to ensure that professionals have the requisite competence to
408 Safriet, supra note 14 at 304–305. 409 See e.g. Sylvia R Cruess & Richard L Cruess, “Professionalism and Medicine’s Social Contract with Society” (2004) 6:4 Virtual Mentor (American Med Assoc J Ethics).
101 practice and that they are constantly seeking to improve their competence constitutes a moral410 failure to protect the public. This is especially true in an area like healthcare, where scientific and technological advancement continually open up ways of treating—or hurting—people, and therefore new zones of potential competence—or incompetence. Turning now to professional morality: professionals are morally required to constantly improve their knowledge and abilities—their competence—in their area of practice. In Quebec this duty can be seen in the professions’ codes of ethics (which means that the duty is not only moral, but legal as well). For example, “[a] physician must, as far as he is able, contribute to the development of the profession by sharing his knowledge and experience, notably with his colleagues, with residents and medical students, and by his participation in activities, courses, and periods of continuing training and evaluation.” 411 A physician must also “practise his profession in accordance with the highest possible current medical standards; to this end, he must, in particular, develop, perfect and keep his knowledge and skills up to date.”412 Similarly, nurses must practice their profession “in accordance with generally accepted standards of practice and scientific principles,” and to that end they must “update and develop [their] professional knowledge and skills.”413 Psychologists must also “develop, perfect and maintain their knowledge and skills in the field in which they carry on their professional activities.”414 Similar provision can be found in all the other professional codes of ethics in Quebec.415 In addition, professionals must police competence within their own ranks, and report the incompetence of fellow professionals to their order.416
In this context, the boundaries of professional law (and the gap between authority and ability that they engender) maintain a contradiction in healthcare organization: the contradiction between (1) regulating professions via exclusive scopes of practice, while at the
410 It is also a legal failure. Recall that section 23 of the Professional Code, supra note 7, states that “[t]he principal function of each order shall be to ensure the protection of the public” and that for this purpose a professional order “must in particular supervise the practice of the profession by its members.” 411 Code of Ethics of Physicians, supra note 11, art 15 [emphasis added]. 412 Ibid, art 44. 413 Code of Ethics of Nurses, supra note 11, art 18. 414 Code of Ethics of Psychologists, supra note 27, art 39. 415 See e.g. Code of Ethics of Geologists, CQLR c G-1.01, r. 2.2, art 4 (“geologists must ensure that they upgrade their skills and update their theoretical and technical knowledge”); Code of Ethics of Bailiffs, CQLR c H-4.1, r. 3, art 3 (“bailiffs shall continue to update their knowledge and take the necessary means to upgrade and develop that knowledge”). 416 See e.g. Code of Ethics of Physicians, supra note 11, art 119; Code of Ethics of Psychologists, supra note 27, arts 64, 67.
102 same time (2) promoting professionals’ skills and competence.417 The contradiction arises as follows. On the one hand, regulating scopes of practice preserves existing boundaries between professions because legally entrenched boundaries are difficult to change. On the other hand, promoting professionals’ skills and competence involves increasing their clinical independence and increasing their flexibility.418 These two objectives are incompatible, for if professionals increase their independence and flexibility but remain confined to the same boundaries, their additional independence and flexibility are wasted. The fixity of boundaries is in tension with evolving professional competence. At the same time, both of these objectives (exclusive scopes of practice and competence promotion) are said to contribute to protecting the public. This makes the contradiction particularly troubling: the ultimate justification of the professional system—protecting the public—rests on conflicting objectives.
Insofar that interprofessional collaboration is promoted as a way to improve healthcare quality and access—and therefore a way to protect the public—it is torn between the opposing poles of this contradiction. This is because implementing true interprofessional care requires both (1) more flexible scopes of practice (or none at all) and (2) more competent professionals. More flexible scopes of practice are needed if professionals are to share increasingly diverse and complex tasks and responsibilities—tasks and responsibilities that do not fit neatly within legislated boundaries. More competent professionals are needed to ensure that professionals are truly capable of executing the tasks they take on.
To complicate things further, approaches that seek to move away from exclusive scopes of practice are “often viewed with mistrust by professionals, who want to preserve their monopoly on expertise.”419 And just as the notion of public protection serves to legitimize monopolies, the notion also offers justifications for some professionals’ mistrust of approaches that seek to reduce or eliminate boundaries: “[m]any [professionals] mention the need to protect against a risky sharing of activities requiring a unique and complex level of skills,” and see barriers between the professions as offering protection against the
417 Clémence Dallaire & Sonia Normand, “Changes and a Few Paradoxes” in Pierre-Gerlier Forest, Gregory P Marchildon & Tom McIntosh, eds, Changing Health Care in Canada: The Romanow Papers, Volume 2 (Toronto: University of Toronto Press, 2004) 183 at 198–199. 418 Ibid. 419 Ibid at 199.
103 confusion of more flexible approaches.420 These dynamics entrench barriers even more firmly in professional practice, while simultaneously obstructing the implementation of interprofessional care.
In sum: the boundaries of professional law can be seen as further encouraging (or legitimizing) what some describe as “professional tribalism.”421 Within a team, individual professionals may adopt individualistic, “go-it-alone” methods that undermine interprofessional collaboration.422 This type of attitude can be especially prominent in the case of the medical profession, which continues to exist in what physician-educator Atul Gawande calls the “Master Builder era—a system in which a lone Master Physician with a prescription pad, an operating room, and a few people to follow his lead plans and executes the entirety of care for a patient, from diagnosis through treatment.”423 Needless to say, the Master Builder era no longer holds in Quebec’s healthcare system. However, as I discuss in the next section, physicians may still to some extent be socialized as Master Builders, and the all-encompassing authority granted to them by professional law certainly does not hinder them from being so socialized. This exacerbates a phenomenon described by sociologists: “the professions engage in various strategies to erect boundaries between their and other professions of occupations’ jurisdictions.”424
§B. COMPETITION AND CONTROL
In this section I argue that professional law acts as an obstacle to interprofessional care because it contributes to establishing unequal power relations between professionals working within the healthcare system. Since these power relations are set in law, their core is difficult to change—for only legislative or regulatory intervention can effect change—and
420 Ibid. For Safriet, attempts to modify exclusive scopes of practice inevitably turn “into a protracted battle about professional turf protection and control over services and money,” with each party claiming that its propositions best serve to protect the public; Safriet, supra note 14 at 303–304. This can be seen from the aftermath of the Commission leading up to the adoption of the Professional Code; see e.g. Gaumer, supra note 105 at 154–155. 421 Susan K Baxter & Shelagh M Brumfitt, “Professional Differences in Interprofessional Working” (2008) 22:3 J Interprofessional Care 239 at 240. 422 Laverdière & Régis, supra note 2 at 204-208. 423 Atul Gawande, “The Checklist Manifesto: How to Get Things Right” (New York: Picador, 2011), e-book: chapter 3. 424 Valérie Fournier, “Boundary Work and the (Un)making of the professions” in Nigel Malin, ed, Professionalism, Boundaries and the Workplace (Oxford: Routledge, 2000) 67 at 73.
104 they are not open to negotiation in the context of an interdisciplinary team or environment. Consequently, these power relations become embedded in the way healthcare work is carried out. This exacerbates professional rivalries and draws professionals apart rather than together. As I discuss below, professional rivalries express themselves through professional law as non-medical professions seek to acquire reserved or exclusive acts, a process wherein professions insist on the specificity, distinctiveness and exclusive ability of their members to carry out certain tasks.
This argument illustrates the presence, in the healthcare system, of two types of structured conflict identified by Rosenberg. The first type groups together conflicts arising out of the decentralization and the fragmentation of loci of power within the healthcare system. The second type groups together conflicts that arise due to the fact that medicine and healthcare, being fundamental social institutions, are the loci of political conflict and therefore reflect and incorporate more general relations of power and status found in society.425 Although Rosenberg identifies these two types of conflicts as separate, I discuss them together because at their heart lie questions of power, authority, status and conflict. Separating these two types of structured conflict in the context of my analysis of interprofessional care is unnecessary.
Power relations play a central role in interprofessional collaboration—and therefore interprofessional care. Professionals (and individuals in general) are more likely to collaborate when their relationships are equitable.426 At the very least, this means that all collaborators can participate in an impartial decision-making process, and that all collaborators are treated with equal dignity and respect. Equitable interprofessional relationships and interprofessional care are undermined by a number of factors, most notably professional rivalries, which are the product of power and hierarchy dynamics that underlie professional relationships.427 Consequently, “professionals must be encouraged to redefine their professionalism in order to change power differentials” if true interprofessional care is to be implemented.428 For without equal power, work conducted in
425 Rosenberg, supra note 109 at 22–23, 27–28. 426 See e.g. Pippa Hall, supra note 1 at 192; Leticia San Martín-Rodríguez et al, “The Determinants of Successful Collaboration” (2005) 19:sup1 J Interprofessional Care 132 at 134. 427 Laverdière & Régis, supra note 1 at 206, 212. 428 Baxter, supra note 421 at 240.
105 interprofessional teams or environments can too easily be overtaken by domination and coercion.429
Unfortunately, professional law limits the extent to which power relationships can be equalized between healthcare professions: as I explain below, professional law places the medical profession in a position of dominance. 430 This exacerbates the fact that the medical profession can be considered to be the most powerful and dominant profession in the healthcare system.431 Indeed, physicians “are socialized, in tertiary education and at work, through legal, organizational and cultural structures, to see themselves as key decision- makers about patient care and the patient pathway through a health service.”432 For example, in healthcare settings involving different professions, civil liability for malpractice tends to follow a physician-centered model of healthcare wherein physicians assume responsibility for diagnosing and overseeing the entire treatment plan, and other professionals are delegated specific duties for specific tasks. Liability for non-medical professionals is assessed on a specific task-by-task basis, whereas physicians’ responsibility is broadly assessed over the entire course of treatment.433 Consequently, physicians will tend see their patients as literally being theirs, and assume a dominant role in relation to other professionals. 434 On the
429 Ibid. 430 See Safriet, supra note 14 at 305–311. 431 Baxter, supra note 421 at 240. See also Ivy Lynn Bourgeault & Gillian Mulvale “Collaborative Health Care Teams in Canada and the USA: Confronting the Structural Embeddedness of Medical Dominance” (2006) 15:5 Health Sociology Review 481 at 488, 491; Debbie Long et al, “The (im)possibilities of clinical democracy” (2006) 15:5 Health Sociology Rev 506. For a brief introduction to the concept of medical dominance, see Conrad & Schneider, supra note 206. The terms “medical dominance” and “professional dominance” are usually attributed to sociologist Eliot Freidson; see Eliot Freidson, Profession of Medicine: A Study of the Sociology of Applied Knowledge (New York: Dodd, Mead, 1970); Eliot Freidson, Professional Dominance: The Social Structure of Medical Care (New York: Atherton Press, 1970); Eliot Freidson, “The Reorganization of the Medical Profession” (1985) 42:1 Med Care Rev 11 at 11–13; Raymond Hudon, Rachel Mathieu & Élisabeth Martin, “Pouvoir médical et interventions législatives au Québec, 2001-2008” (2009) 50:2 Recherches sociographiques 255 at 258–259; Clarke, supra note 280 at 298–301; John B McKinlay & Lisa D Marceau, “The End of the Golden Age of Doctoring” in Peter Conrad & Valerie Leiter, eds, The Sociology of Health & Illness, 9th ed (New York: Worth, 2013) 234 at 235; Michael Calnan, “Eliot Freidson: Sociological Narratives of Professionalism and Modern Medicine” in Fran Collyer, ed, The Palgrave Handbook of Social Theory in Health, Illness and Medicine (Houndmills, UK: Palgrave Macmillan, 2015) 287 at 288; David Coburn, “Vincente Navarro: Marxism, Medical Dominance, Healthcare and Health” in Fran Collyer, ed, The Palgrave Handbook of Social Theory in Health, Illness and Medicine (Houndmills, UK: Palgrave Macmillan, 2015) 405 at 412–413; Bernice Pescosolido, “Theories and the Rise and Fall of the Medical Profession” in William C Cockerham, ed, Medical Sociology on the Move: New Directions in Theory (Dordrecht: Springer, 2013) 173 at 177–178. 432 Peter Nugus et al, “How and Where Clinicians Exercise Power: Interprofessional Relations in Health Care” (2010) 71:5 Social Science & Medicine 898 at 908. See also Pippa Hall, supra note 1 at 192. 433 See Lahey & Currie, supra note 14 at 211–212. 434 Nugus et al, supra note 432 at 901.
106 institutional side, physicians may have more power than other professions in deciding how to organize certain practice settings, often to the disadvantage of these other professions.435
Of course evaluating the nature and extent (or absence) of the medical profession’s dominance is a complex and multi-faceted question, one that exceeds the scope of this essay. Suffice it to say that the concept of medical dominance, and empirical observations in support of this concept, are the subject of much debate and critique, with many authors arguing that whatever dominance may have existed in the past is now in decline, or undergoing substantial transformation to milder forms.436 For this reason, I focus only on professional law, and the way it can create and embed unequal power relations in the healthcare context, especially vis-à-vis the medical profession’s relations to other healthcare professions.
i. How Dominance Is Created
Professional law creates unequal power relations via exclusive scopes of practice, a phenomenon that is best observed in the case of the medical profession. Recall that historically, section 31 of the Medical Act defined the practice of medicine extremely broadly, encompassing “every act having as its object to diagnose or treat any deficiency in the health of a human being.”437 Consequently, any activity having anything to do with health fell under physicians’ scope of practice. This led to the sweeping interpretations found in the St-Amant and Chiropraticiens 2003 cases, discussed in the previous section, where the act of giving a
435 Regan et al, supra note 2 at 361–362. 436 See David Coburn, “Medical Dominance Then and Now: Critical Reflections” (2006) 15:5 Health Sociology Rev 432 (describing challenges to medical dominance); Evan Willis, “Introduction: Taking Stock of Medical Dominane” (2006) 15:5 Health Sociology Rev 421; John B McKinlay & Lisa D Marceau, supra note 431; Donald W Light, “Countervailing Power: The Changing Character of the Medical Profession in the United States” in Peter Conrad & Valerie Leiter, eds, The Sociology of Health & Illness, 9th ed (New York: Worth, 2013) 260; Reva Berman Brown and Sean McCartney, “Professionalism Definitions in ‘Managing’ Health Services: Perspectives on the differing views of clinicians and general managers in an NHS Trust” in Nigel Malin, ed, Professionalism, Boundaries and the Workplace (London, UK: Routledge, 2000) 178 at 183–184 (listing “threats to the dominance of the medical profession”); Alex Broom, “Reflections on the Centrality of Power in Medical Sociology: An Empirical Test and Theoretical Elaboration” (2006) 15:5 Health Sociology Rev 496 (arguing that the concept of medical dominance oversimplifies reality); Raymond Hudon, “Le pouvoir médical au Québec: Tensions autour du statut professionnel des médecins” (2009) 50:2 Recherches Sociographiques 245 at 250– 251; Raymond Hudon, Élisabeth Martin & Maxime Perreault, “Le pouvoir médical et le défi de la collaboration interprofessionnelle: Trois cas de figure” (2009) 50:2 Recherches sociographiques 321 at 330–331 (describing different critiques of the medical dominance thesis); Robert Dingwall, Essays on Professions (Aldershot, UK: Ashgate, 2008) at 127ff (for a general overview of the critiques of the concept of medical dominance). 437 Medical Act 1973, supra note 385, and accompanying text [emphasis added].
107 massage was interpreted as falling within the practice of medicine, and the term “diagnosis” itself was interpreted as an exclusively medical term of art.
Section 31 of the Medical Act was modified in 2002 with the adoption of Bill 90, most notably by replacing the section’s second paragraph—which until then had consisted of a non-exhaustive438 list of activities that typified medical practice—with an exhaustive list of activities specifically reserved to physicians.439 Two other amendments to section 31 followed this amendment, but they were more limited in scope and did not represent as substantial a change as the Bill 90 amendment.440
Despite its amendments since 2002, the current version441 of section 31 of the Medical Act remains extremely broad in its definition of medical practice. Medical practice remains generally defined as “assessing and diagnosing any health deficiency in a person in interaction with their environment, in preventing and treating illness to maintain or restore health or to provide appropriate symptom relief.” Following such a definition, anything related to the human body or mind and maintaining their integrity falls within the purview of medical practice. Note that this dynamic is not limited to Quebec. Safriet describes how, in the United States, medical practice has historically been defined in equally broad terms, giving physicians “exclusive domain” over a “breath-taking range” of activities.”442 For Safriet, medical practice acts defined medical practice in ways that “swept the entire human condition within their purview” because the medical profession was the first healthcare profession to effectively organize itself,443 a hypothesis that appears reasonable in light of historians’ account of the history of medicine in Quebec.444
The fact that the second paragraph of section 31 of the Medical Act now contains an exhaustive list of reserved activities may temper the medical profession’s ability to
438 The French version of the pre-2002 version of the second paragraph of section 31 of the Medical Act (formerly numbered 29) is clearer than the English version vis-à-vis the fact that it is non-limitative: using the word “notamment” at the beginning of the list of activities that comprise the practice of medicine; see Medical Act 1973, supra note 385, s 29. 439 Bill 90, supra note 32, s 17. 440 Bill 21, An Act to amend the Professional Code and other legislative provisions in the field of mental health and human relations, 1st Sess, 39th Leg, Quebec, 2009 (assented to 19 June 2009), SQ 2009, c 28, s 15; Bill 52, An Act Respecting End-of-life Care, 1st Sess, 41st Leg, Quebec, 2014 (assented to 10 June 2014), SQ 2014, c 2, s 69. 441 See supra note 16 and accompanying text. 442 Safriet, supra note 14 at 306ff. 443 Ibid at 306. 444 See e.g. Goulet, supra note 144; Bernier, supra note 321.
108 completely exclude others from treating people’s health more than it did in the past. For in the past, the medical profession’s power to exclude was only tempered by laws and regulations that explicitly allowed other professionals to undertake health-related activities: every other activity imaginable automatically fell under the medical profession’s all- encompassing exclusive authority, whereas presently, an activity needs to fall under one of the specifically-listed activities in the second paragraph. But this second paragraph does not limit physicians’ ability when it comes to undertaking any type of health-related work. Physicians are only limited by their own code of ethics—which requires them to undertake only those activities for which they judge themselves competent—and the risk of civil liability should they injure their patient by overstepping the limits of their own competence. In other words: “it is self-restraint, rather than lack of authority, that keeps physicians from practicing beyond the bounds of their abilities.”445 The medical profession has never (or at least not since the adoption of the current Medical Act in 1973) needed to seek legislative amendment to its scope of practice because the legal definition of medical practice has been “undifferentiated, universal and timeless, [such that] a licensed medical doctor is authorized to undertake virtually any kind of medical or health intervention.”446 As healthcare options increase, physicians may—subject only to self-restraint due to the risks of ethical or civil liability—proceed to incorporate these new options without being constrained by law.
With respect to the medical profession’s ability to exclude others from key healthcare activities, I argue that the second paragraph of section 31 of the Medical Act maintains the medical profession’s hegemonic position in healthcare, even though this position may have been somewhat tempered by an exhaustive list of reserved activities. The reserved activities listed in the second paragraph of section 31 of the Medical Act are very broad, and go to the heart of healthcare. For example: “diagnosing illnesses,” “prescribing diagnostic examinations,” “determining medical treatment,” “prescribing medications and other substances,” “prescribing treatment” are all reserved to physicians.447 It is difficult to imagine how healthcare interventions—at least those going beyond the superficial—can be undertaken without taking on these activities. These reserved activities, then, allow physicians to retain control over all the key aspects of the healthcare process: it is ultimately
445 Safriet, supra note 14 at 311. 446 Ibid. 447 Medical Act, supra note 10, s 31.
109 physicians who diagnose a person’s problem and decide what is to be done, whereas other professionals may play a delegated or peripheral role. This helps to explain why physicians may have a tendency to consider patients as “theirs” when interacting with other healthcare professionals, and why they see themselves—no doubt rightly so—as assuming a very broad civil liability should something go wrong in the treatment process.448
The medical profession’s dominant legal position with respect to healthcare activities is in stark contrast to the position of other healthcare professions. No other healthcare profession enjoys legal authority—in terms of scope of practice—that equals or even nears the medical profession’s authority, for all non-medical professions are confined to scope of practice definitions that are far more precise than the all-encompassing definition of medicine. This is the case with respect to both (a) exclusive professions that have their own statute, and (b) professions with reserved titles that also have reserved acts under the Professional Code.
a. Exclusive Professions
The nursing profession is a good example of the medical profession’s dominant legal position in comparison to other exclusive professions because the nursing profession is the most visible healthcare profession after the medical profession. The practice of nursing is defined at section 36 of the Nurses Act, the first paragraph of which reads as follows:
36. The practice of nursing consists in assessing health, determining and carrying out the nursing care and treatment plan, providing nursing and medical care and treatment in order to maintain and restore the health of a person in interaction with his environment and prevent illness, and providing palliative care.449
The practice of nursing does not include diagnosing health deficiencies: nurses are limited to “assessing health.” Nurses can determine and carry out nursing care and treatment plans, but when it comes to “restoring the health of a person in interaction with his environment and prevent illness,” nurses provide both nursing and medical care, thereby suggesting that nursing
448 See Laverdière & Régis, supra note 2 at 212. 449 Nurses Act, supra note 10, s 36 para 1.
110 care would be insufficient to achieve the goal. The second paragraph contains a number of activities that are reserved to nurses, but these activities are either secondary to physicians’ activities, or much more technically precise—and therefore narrower—than the acts of reserved to physicians. Examples of activities that are secondary to those of physicians are “initiating diagnostic and therapeutic measures, according to a prescription” and “providing and adjusting medical treatment, according to a prescription.”450 Examples of technically precise and narrow activities are “initiating diagnostic measures for the purposes of a screening operation under the Public Health Act” and “performing vaccinations as part of a vaccination operation under the Public Health Act.”451
Section 36.1 of the Nurses Act allows nurses to venture onto physicians’ terrain, allowing them to engage in five activities that are reserved to physicians under section 31 of the Medical Act. But nurses may only engage in these activities if they are authorized to do so pursuant to—and in accordance with the limitation of—two regulations.452 Nurses may also engage in other activities reserved to physicians, but only under specific conditions specified in regulations.453
Analysis of the above two sections of the Nurses Act demonstrates how nurses are far more constrained than—and subordinate to—physicians in the realm of professional law. This is important to note because the nursing profession has the most expansive scope of practice definition of all non-medical professions, no doubt because nurses practice in the broadest range of healthcare settings. The authority of all other non-medical professions is narrower than that of nurses, even though the extent of the authority of two other professions may be greater—or more “exclusive” vis-à-vis the medical profession—than that of nurses, that is: the dental profession and the pharmacy profession.
450 Nurses Act, ibid, s 36 para 2 (3), (6). 451 Ibid, s 36 para 2 (4), (12). The reserved activities of many other exclusive professions within healthcare are also technical and narrow. See e.g. Act Respecting Medical Imaging Technologists, Radiation Oncology Technologists and Medical Electrophysiology Technologists, CQLR c T-5, ss 7, 11.1; An Act Respecting Acupuncture, supra note 10, ss 8–9. Furthermore, the reserved activities of some exclusive professions within healthcare are secondary to that of another profession; see e.g. Denturologists Act, CQLR c D-4, ss 6–8 (denturologists secondary to dentists); Dispensing Opticians Act, CQLR c O-6, ss 8–9 (secondary to optometrists and physicians). 452 Regulation respecting classes of specialization of the Ordre des infirmières et infirmiers du Québec for the activities referred to in section 36.1 of the Nurses Act to be engaged in, CQLR c I-8, r 8; Regulation respecting the activities contemplated in section 31 of the Medical Act which may be engaged in by classes of persons other than physicians, CQLR c M-9, r 13. 453 See Regulation respecting certain professional activities that may be engaged in by a nurse, CQLR c M-9, r 12.001; Regulation respecting certain surgical first assistance activities that may be engaged in by a nurse, CQLR c M-9, r 1.1.
111 The professions of dentistry and pharmacy are the only two professions that have a zone of authority—scope of practice—that can appears to rival that of physicians.454 But their authority remains very limited in comparison to that of physicians. Dentists are limited to “the teeth, mouth, maxillae or adjacent tissue [of] human beings.”455 Pharmacists are limited to the realm of medications and, most importantly, are not allowed to diagnose health issues that require medications. The scope of healthcare work covered by dentistry and pharmacy, although important and more exclusive vis-à-vis physicians than other professions, is much smaller than that of physicians and not able to expand in the same way. Dentists and pharmacists have their fiefdoms, but they are nowhere near as vast and expansive as that of physicians.
One final example of the medical professions’ legal dominance of healthcare activities vis-à-vis exclusive professions can be seen in the practice of acupuncture. Physicians may practice acupuncture if they complete “a training program in acupuncture that is in accordance with the present requirements of the profession and comprises a minimum of 300 hours of theoretical and practical training.” 456 However, would-be physician-acupuncturists’ must apply to the Collège des médecins du Québec and not the Order of acupuncturists. This means that the order charged with overseeing the practice of acupuncture in Quebec plays no part in the process of determining whether physicians are qualified to practice acupuncture. This is a striking example of the dominant position of the medical profession: not only can physicians extend their authority into the realm of another exclusive profession (acupuncture), they can do so without having anything to do with the Order of that profession. The credentials committee may need to include one physician- acupuncturist, but this only further demonstrates the point: the committee needs to include a physician-acupuncturist, as opposed to an acupuncturist tout court. One cannot help but wonder: is this because physicians cannot countenance being evaluated by members of professions other than their own? If yes, this would hardly be conducive to cultivating an atmosphere of equal power and respect between the healthcare professions.
454 See Dental Act, supra note 21, ss 26–28; Pharmacy Act, supra note 10, s 17. 455 Dental Act, ibid, s 26. 456 Regulation respecting the training of physicians who wish to practise acupuncture, supra note 11, s 2.
112 b. Professions with Reserved Titles
The same dynamics discussed with respect exclusive professions can be observed with respect to professions with reserved titles: professions with reserved titles working within healthcare have comparatively narrow and technically specific reserved activities in comparison to the medical profession, placing the medical profession in a position of legal dominance. Recall that under the Professional Code, healthcare professions with reserved titles are granted reserved activities. The reserved activities of professions with reserved titles are listed at section 37.1 of the Professional Code.457 These activities are all technically specific, leaving little or no room for future expansion. Furthermore, these acts are reserved to these professions “within the scope of the activities they may engage in under section 37.”458 The scopes of activities defined at section 37 for professions with reserved titles are more expansive, but not reserved and nowhere near as expansive as that of medical profession.
The legal mechanism for reserved activities of professions with reserved titles is a two-step process through which these professions are confined to tasks of varying technical specificity (depending on the profession). The first step is section 37 of the Professional Code, which defines the professions’ non-exclusive scopes of practice. Anyone can generally engage in the activities described at section 37, as is made clear by section 38 of the Professional Code which states, inter alia, that “[n]othing in this division shall be interpreted as giving to members of an order to which it applies the exclusive right to engage in the activities described in section 37.”459 The scopes of practice defined at section 37 of the Professional Code, therefore, narrow the conceptual scope of professions with reserved titles from the all-encompassing concept of “health” to a more precise realm.
The second step is section 37.1 of the Professional Code, which grants reserved activities to healthcare professions with reserved titles. These activities must be interpreted—and therefore undertaken—in a way that is consistent with each profession’s respective scope of activities as defined in section 37 of the Professional Code. Of course, these reserved activities are more technically specific that the scopes of activities defined at section 37 of the Professional Code.
457 See supra note 33ff and accompanying text. 458 Professional Code, supra note 7, s 37.1. 459 Ibid, s 38.
113 Based on this two-step mechanism, I conclude the following with respect to professions with reserved titles. First, this mechanism acts as a funnel, funnelling professionals towards types of work–activities that are specific enough to be identified with a semi-technical definition and then granted to specific categories of individuals—professions with reserved titles. At the same time, these types of work are indeterminate enough to require them being carried out by a “professional,” that is: the technical specificity of the work is not so great as to be routinized and delegated to a minimally trained labourer or machine (or both).460 Second, the types of work–activities towards which professions with reserved titles are being funnelled are activities that need to be identified prior to legislation being enacted. In other words: professions (or would-be professions) with reserved titles that desire “their own” fiefdom within healthcare need to carve their fiefdom out of the all- encompassing scope of medical practice. Third, all the activities reserved to professions with reserved titles are in some way secondary or subordinate to medical authority (with the possible exception of certain reserved activities in the realm of social services461).
Finally, nothing in the Professional Code and related statutes and regulations—aside from general ethical duties contained in the Code of ethics of physicians—prevents members of the medical profession from undertaking the reserved activities of professions with reserved titles. Physicians are not allowed to use the titles of professions with reserved activities, for example: they cannot call themselves dieticians or physiotherapists or psychologists. But I posit that physicians have the same legal authority as dieticians when it comes to monitoring “the nutritional status of persons whose nutritional treatment plan has been determined.”462 Similarly, there is nothing restricting the authority of physicians in the realm of physiotherapists, in matters such as: assessing “neuromusculoskeletal function in a person having a physical function limitation or disability,” making “a functional assessment of a person where required under an Act,” introducing “an instrument in the human body in and
460 The interplay between specificity and indeterminacy of tasks plays a key role in professionalization; see Kristine A Hirschkorn, “Exclusive Versus Everyday Forms of Professional Knowledge: Legitimacy Claims in Conventional and Alternative Medicine” (2006) 28:5 Sociology of Health & Illness 533; H Jamous & B Peloille, “Changes in the French University-Hospital System” in JA Jackson, ed, Professions and Professionalization (Cambridge, UK: Cambridge University Press, 1970) 109. 461 See e.g. Professional Code, supra note 7, s 37.1(1.1)(b), (c), (e). Whether we consider this to be an exception, however, depends on how one conceptualizes “healthcare.” If healthcare includes social services, than this may properly be considered an exception. If healthcare does not include social services, than it is not an exception, since social services constitutes its own realm outside of physicians’ all-encompassing scope of practice. 462 Professional Code, ibid, s 37.1(1)(b).
114 beyond the pharynx or the nasal vestibule,” or using “invasive forms of energy.” 463 Physicians are also equal in authority to psychologists when it comes to the practice of psychotherapy, for only the medical and psychological professions may practice psychotherapy without a psychotherapy permit.464 Note that the Professional Code states that physicians tout court—and not psychiatrists—are entitled to practice psychotherapy, once again demonstrating physicians’ authority. In addition, nothing prevents physicians from engaging in psychologists’ reserved activity of assessing mental disorders.465
I am not suggesting that physicians would undertake the activities I just mentioned, or that physicians would be tempted to colonize other professions’ fiefdoms. Indeed, there are barriers other than professional law that constrain physicians to certain types of practice— for example: professional ethics, workplace organization and stratification, and remuneration structure. That being said, the above analysis above is meant to support the following proposition: in terms of the power and legal authority over human health, illness and well-being that is distributed among the professions by professional law, the medical profession is by far the most dominant profession. Whereas professional law (or the professional system) explicitly limits every other healthcare profession’s practice to a sub-jurisdiction of the vast realm of “healthcare,” medical practice is explicitly limitless—its only limits within professional law are implicit. And not only is medical practice legally limitless, it is also central to healthcare via physicians’ almost exclusive control over the powers diagnosis and prescription.
Before moving on, recall the idea that professional law separates legal authority from clinical ability.466 Based on this idea, combined with the legal dynamics described that place physicians in a dominant position with respect to all other healthcare professions, I argue the following. Physicians have limitless authority over healthcare, and their ability to undertake any activity related to healthcare is presumed. In addition, physicians’ ability to determine whether or not they are sufficiently qualified to undertake a healthcare activity is also presumed—most obviously in the case of a general practitioner who refers to specialists.467
463 Ibid, s 37.1(3)(a), (b), (d), (e). 464 Ibid, ss 187.1–187.2. 465 Ibid, s 37.1(1.2)(b). 466 See Chapter 3, §A (iii), above. 467 Clayton M. Christensen, Richard Bohmer & John Kenagy, “Will Disruptive Innovations Cure Health Care?” (2000) 78:5 Harv Bus Rev 102 at 108 (if “family practice doctors recognize when they can treat a disroder and
115 As new abilities appear—or are made possible by advances in science—physicians can simply add new abilities to their practice because they already fall within their indeterminately (or indefinitely) broad legal authority. On the other hand, the authority of other healthcare professions is determined on the basis of the clinical abilities that they are able to demonstrate at the moment in time when professional legislation or regulation is adopted. Their clinical abilities are therefore fixed in time, bound to the abilities that they had at the moment the legislature or government decided to act. Other professions therefore have the inverse problem of physicians: if their clinical abilities increase (typically through increased educational requirements) they must return to the legislature or government in order to increase their legal authority in a way that matches with their ability. If they fail to do so, they are faced with an unpleasant dilemma: either they forgo incorporating their newly-acquired clinical abilities into their activities and remain safely within the confines of their out-dated legal authority, or they incorporate their new abilities and risk penal sanction for having entered into another profession’s jurisidiction—typically the medical profession.468
In principle, the back-and-forth process just described between non-medical healthcare professions and the legislature or government is to continue indefinitely. Each occasion offers the medical profession, or other non-medical and rival professions, the occasion to argue that the petitioning professions should not have their authority increased or, in the case of rival professions, that they should also see their own authority increased. Indeed, professions must compete with each other for a place in the healthcare system—and the access to salaries, benefits and social status that comes with that place. Which brings me to the subject of professional rivalries.
ii. Professional Rivalries
In the previous subsection I demonstrated how professional law distributes power– authority–jurisdiction unequally between the healthcare professions, giving the lion’s share of power to the medical profession. This process operates in conjunction with the boundaries drawn by professional law (the boundaries that structure the professional system as a system of interconnected and interdependent parts) described in §A. Going back to the
when it merits referral to a specialist,” surely other health professionals, such as nurse practitioners, could “be equipped to do the same thing”). 468 See Safriet, supra note 14 at 305, 308–309.
116 medieval fiefdom metaphor I use above: the boundaries of professional law carve up the realm of healthcare into fiefdoms over which different professions are given varying level of authority. The entire realm of healthcare, however, remains under the sovereignty of the medical profession—the only profession allowed to travel unhindered (at least as far as the boundaries of professional law are concerned) across the realm.
These boundaries, and the authority over the healthcare activities that fall within them, are distinct from the professions’ clinical abilities. This dynamic creates the situation I describe at the end of the previous subsection, a dynamic described by Safriet as follows:
only physicians are free of the burden of having to reconcile their clinical abilities and their legal authority. That is, they have a monopoly on authority, if not ability. All others, including both long-established and emerging professions, must constantly choose between two unattractive alternatives: foregoing the safe practice of what they have been educated and trained to do, or risking legal sanction for stepping outside the boundaries of their legislatively-defined, static, circumscribed, and outdated scopes of practice. This double dichotomy—between legal authority and clinical ability, and between physicians and all other [healthcare professions]—is the motive force behind . . . needless and never-ending legislative and regulatory battles.469
These “turf battles,” as Safriet calls them,470 are the result of non-medical professions’ need to distinguish themselves from the medical profession. Why this need? Because the medical profession was the first healthcare profession to organize itself with great effectiveness,471 and because it was given authority over all of healthcare very early on—even before the 1973 adoption of the Professional Code and the Medical Act, and especially before other healthcare professions had effectively organized—other would-be professions needed to carve-out a piece of healthcare that they could claim for themselves.
469 Ibid 305. 470 Ibid. 471 See e.g. Louis Demers, “La profession médicale et l’État” in Vincent Lemieux et al, eds, Le système de santé au Québec: organisation, acteurs, enjeux (Quebec: Presses de l’Université Laval, 2003) 261 at 261-264.
117 For sociologist Andrew Abbott, the key feature of the professionalization phenomenon—the socio-historical phenomenon by which professions form and evolve—is competition for control over work: “It is control of work that brings the professions into conflict with each other and makes their histories interdependent. It is differentiation in types of work that often leads to serious differentiation within the professions.”472 The “link between a profession and its work” that Abbot calls “jurisdiction” is “the central phenomenon of professional life.”473 Competition for control over work plays itself out in the legal arena in the form of the regulatory turf battles described above.
However, in order to claim jurisdiction over a turf, the turf needs to exist in the first place. Work must be “created” through a process of differentiation from others or, to use Abbott’s terminology: professional tasks need to be given an “objective foundation.” This foundation is necessary if the tasks are to be claimed effectively, and avoid being re- conceptualized and subsequently colonized by a rival occupational or professional group.474 In the healthcare sector, the emergence (or even construction) of new types of diagnoses “create” new types of work—and therefore new types of clientele 475 —that different professions can claim for themselves. The creation of work, then, not only extends to tasks but also the knowledge that is used to carry out that task: professions coalesce around a disciplinary field that they themselves constitute and promote as a “legitimate area of knowledge and of intervention on the world.” 476 In sum: professions (or would-be professions) must differentiate their work and knowledge from that of other professions or occupations if they wish to (1) be able to claim the work for themselves and (2) effectively exclude others from that work.
Unfortunately, differentiation and exclusion are forces that cultivate an ethos of separation: professions are drawn apart from each other, and not together, in order to maintain established boundaries and perhaps eventually cultivate new ones. Ironically, the interdependence of healthcare professions (all healthcare professions are, after all, devoted
472 Abbott, supra note 280 at 19–20. 473 Ibid at 20. 474 Ibid at 35–40. See generally Chih-hsiung Chen, “Medicine: The Case of Traditional Chinese Medicine in Taiwan” (2012) 7:3 U Penn E Asia L Rev 49 at 472–473 (for an example of colonization and the perverse effects generated by the fear of colonization). 475 Prud’homme, Professions à part entière, supra note 42 at 222–223. 476 Fournier, supra note 424 at 69.
118 to the complex and multifaceted mission of promoting people’s health) is what ends up driving them apart: a move by one profession to control an area inevitably affects the others, who must then adapt to their rival’s extended jurisdiction.477 Abbott’s theoretical framework also helps to explain the dominant legal position of the medical profession in the professional hierarchy. The medical profession, having historically been granted an all- encompassing jurisdiction, was quite naturally unable to meet all of the needs that fell within this jurisdiction. In order to meet as many needs as possible, the profession conscripted other occupations to carry out more routine tasks while maintaining them under the medical profession’s supervision. For Abbott, “internal subordination of routine work is a characteristic strategy of professions claiming more jurisdiction that they can effectively serve.” 478 But over time and given the right conditions, subordinate occupations seek professional status in order to emancipate themselves—a process observed in several of Quebec’s non-medical professions since the end of the Second World War, and steadily increasing since the Quiet Revolution and the Castonguay-Nepveu Commission’s Report.479
These dynamics of differentiation, exclusion and subordination undermine the project of implementing interprofessional care. How are professions supposed to work together, how are they supposed to form truly effective and efficient teams, if they are in effect competing with each other? Failing to recognize the existence of dynamics drawing the professions apart, failing to recognize that these dynamics are embedded into our professional law–system, and failing to recognize that they are reinforced by our professional law–system leads to devising policies that remain on the margins of the problem, policies that cannot possibly lead to a true ethos or culture of interprofessional care in the healthcare system.
iii. Functionalism and Failed Policy
Bill 90 is an example of a failed policy for interprofessional care: a policy that was adopted without recognizing the underlying dynamics driving professional competition. Bill 90 was intended to modernize the professional system, specifically with respect to healthcare professions. This modernization effort was motivated by the perceived need to put an end to
477 See Abbott, supra note 280 at 86ff. 478 Ibid at 25. 479 Julien Prud’homme’s book is dedicated to telling this story; Professions à part entière, supra note 42.
119 the healthcare system being held hostage by interprofessional competition and encourage interprofessional collaboration—which had not truly materialized since the adoption of the Professional Code thirty years earlier, despite the Castonguay-Nepveu Commission’s best intentions. Ultimately, the objective was to make healthcare professions complement each other, increase interprofessional care and make the best possible utilization of the healthcare system’s resources. 480 The continued calls for greater interprofessional care, and the interprofessional conflicts that continue to be reported, both suggest that Bill 90 has failed. Once again, despite best intentions, the rhetoric (or discourse) endorsing professional complementarity and integration has not materialized into the stated objective of interprofessional care.
Bill 90’s failure to usher in a new era of interprofessional care should not be surprising in light of the dynamics I describe above. The Castonguay-Nepveu Commission was explicitly in favour of interprofessional care (although it did not use the same term), and against professional hierarchies and interprofessional competition. Yet the professional system that was adopted in the wake of the Commission’s Report did not materialize in this way. There was a gap between the Commission’s stated objectives for interprofessional care and the professional law–system that ended up being adopted—a gap that may only be obvious in historical hindsight. Thirty years later, Bill 90 was supposed to fix the problem, but it remained in exactly the same paradigm as that recommended by the Commission: a paradigm based on the idea of a system in which professions are the basic unit of analysis, and where work–activities are distributed among the professions. The change from “exclusive” activities to “reserved” activities, supposed to increase flexibility in the system and enhance shared competencies,481 actually amounted to little more than a semantic play when analysed from the perspective of the underlying dynamics of the professional law– system. Professions remained incentivized (and remain so to this day) to compete with each
480 See Jean-Bernard Trudeau et al, “La « loi 90 »: la force de l’interdisciplinarité: des connaissances et des compétences à partager” in Marie-Josée Fleury et al, eds, Le système sociosanitaire au Québec: Gouvernance, régulation et participation (Montréal: Gaëtan Morin, 2007) 263 at 263–266. See also Galipeau, supra note 392 at para 12. 481 Trudeau et al, ibid at 266–271.
120 other in developing their disciplinary fields to create and appropriate work for themselves— and consolidate their profession’s place within healthcare.482
Professional law poses an obstacle to the implementation of interprofessional care because it structures the professional system around a functionalist understanding of the professions—a functionalist understanding inherited from the Castonguay-Nepveu Commission.483 Recall that functionalism was the dominant approach in the sociology of the professions at the time of the Commission’s Report, and that this approach focuses on the operation of institutions that structure and maintain the existence of functioning social systems.484 Recall as well that the Commission expressly adopted a functionalist definition of professions.485 This definition (1) insisted only on the function that professions—as a social institution and group—played in the context of a larger social system, and (2) de-emphasized or even ignored power, prestige and status—and therefore interprofessional competition. Professions were seen through a lens that only saw them as institutionalized groups of disinterested486 people holding a place within a larger system in order to make the system work.487
From the Commission’s functionalist perspective, a system composed of professions with exclusive and complementary scopes of practice was perfectly logical. Unfortunately, the functionalist perspective was beginning to be out-dated, and it was increasingly criticized. Most notable among the critiques were those that emphasized the ideological dimensions of
482 See e.g. Prud’homme, Professions à part entière, supra note 42 at 200-218; Thomas W Elwood, “Patchwork of Scope-of-Practice Regulations Prevent Allied Health Professionals from Fully Participating in Patient Care” (2013) 32:11 Health Affairs 1985 at 1985–1989. 483 On the functionalist foundations of the professional system, see Desharnais, supra note 54 at 14–15, 80–81. 484 See supra note 280. 485 The Commission also overtly adopted sociology as a lens of analysis. Before examining the state of professional law, the Commission considered it necessary to discuss the sociological foundation of the professions. Indeed, the Commission wrote: “Le droit professionnel, pour remplir la fonction politique que lui confère son caractère d’instrument de la société, doit donc traduire adéquatement la réalité sociologique contenue dans les notions de profession et d’organisme professionnel.” CNC Report Vol VII, supra note 91 at 11, 15. This shows the Commission’s general commitment to scientifically assessing society: “Une connaissance mieux organisée et plus scientifique [de la situation sociale] permettra probablement l’adoption de mesures politiques plus conformes à la réalité.” CNC Report Vol III, supra note 182, t 1 at 48. Unfortunately, the Commission’s enthusiasm for scientific assessment and the analytical framework it adopted oversimplified the phenomenon under study. 486 Note that disinterested public service was also central to the functionalist understanding of the professions, hence the preeminent place of protecting the public in the discourse legitimizing the professional system; see e.g. Claude Dubar, La socialisation: Construction des identités sociales et professionnelles, 5th ed (Paris: Armand Colin, 2015) at 129–132. 487 Supra note 285 and accompanying text.
121 professions, their monopolistic power and domination over other occupations and areas of social concern. 488 Functionalism was denounced as serving the ideological ends of the professions because it uncritically adopted the discourse that professions used to describe themselves, “naturalizing” professions’ privileged place in society.489 These critiques were important, but they also had a fundamental element in common with functionalism: they took professions as the basic unit of analysis. For Abbott, this failed to reveal the underlying dynamics driving professionalization and professional competition.490 Focus on the structure of professions rather than on the work–activities they seek to control was the “central problem” of the concept of professionalization.491 Abbott’s insight is important from the perspective of professional law and its reform: acknowledging and criticizing professional power is useful, but it has little chance of leading to legislation that will address the problem if the concept of profession misses the dynamics underlying the professional phenomenon. In other words: functionalism oversimplifies the professional phenomenon, and any legislation or reform that is adopted using functionalism as its conceptual framework will suffer from the same fundamental failures as its predecessors.
The statutes, regulations and policies adopted following the Commission’s analysis and recommendations embedded functionalism into Quebec’s professional law–system. Consequently, any reform or policy that follows the same logic as the current law–system is bound to miss the underlying dynamics driving professional competition and hindering interprofessional care and collaboration.
488 Abbott, supra note 280 at 5–6. See also Ellen Annandale, The Sociology of Health and Medicine: A Critical Introduction, 2nd ed (Cambridge, UK: Polity Press, 2014) at 175–176; Tracey L Adams, “Profession: A Useful Concept for Sociological Analysis?” (2010) 47:1 Can Rev Sociology 49 at 52. For notable examples of such critiques, which followed shortly after the Commission’s Report, see Freidson, Profession of Medicine, supra note 431; Freidson, Professional Dominance, supra note 431; Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982); Ivan Illich et al, Disabling Professions (London, UK: Marion Boyars, 1977). See also Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley: University of California Press, 1977). But see Magali Sarfatti Larson, “À propos des professionnels et des experts ou comme il est peu utile d’essayer de tout dire” (1988) 20:2 Sociologie et sociétés 23. 489 Abbott, supra note 280 at 5–7. See also Champy, supra note 280 at 24–25; Martineau, supra note 280 at 13. 490 Abbott, ibid at 25, 112–113. 491 Ibid at 19.
122 §C. CONCLUSION TO CHAPTER 3
In the two previous sections (§A and §B) of this Chapter, I describe two complementary dynamics that are built into professional law and how these dynamics act as an obstacle to interprofessional care. I first describe (in §A) how professional law erects rigid boundaries between the professions. These boundaries confine professions and often prevent them—particularly non-medical professions—from being able to contribute to healthcare as much as they otherwise could. I then describe (in §B) how professional law distributes power unequally between the professions, and how the law is a means through which healthcare professions compete with each other. 492 This competition fuels professional rivalry and competition over control of work–activities, for the law is a means through which professions can attempt to secure and consolidate their position in healthcare. I also demonstrated how these dynamics are linked to the functionalist conceptual framework developed by the Castonguay-Nepveu Commission.
These dynamics work together to draw the professions apart rather than bring them together. They are embedded into the professional system itself, and constantly undermine attempts to implement interprofessional care. I posit that these dynamics will persist and resist any attempt at reform that remains within the same conceptual framework. The failure of one of the biggest (if not the biggest) reforms of Quebec’s professional law since the creation of the professional system itself—a reform that was specifically intended to improve interprofessional care and collaboration—suggests that this is the case. Almost fifteen years after the adoption of Bill 90, calls for increased interprofessional care continue to be heard. Pious statements in support of interprofessional care are inevitable—it is difficult to see how one could be against the idea. But unless future attempts at reform eschew the conceptual framework that we have inherited from the Commission, it seems unlikely that large-scale progress can be achieved.
Boundaries between the professions will always drive professions apart, because professions will continue to define themselves—and be defined by others—in function of
492 This dynamic of the law serving as a locus for competition between the professions is not new, and well captured by Sheppard when he writes: “À tort ou à raison, on considère chez nous que pour être un véritable « professionnel », il faut appartenir à une corporation possédant « son » bill”; Sheppard, supra note 225 at 196. Sheppard also notes that the historical practice of creating professions via special bills, in an ad hoc manner over time, “peut découler de l’importance ou du prestige que l’État veut donner à cette [profession]”; Sheppard, supra note 225 at 186.
123 the legal authority granted to them by professional law. Professional law will continue to set different roles for each profession based on existing needs at the time of legislative or regulatory intervention, which will constantly generate gaps between legal authority, on one hand, and clinical needs and ability on the other. Boundaries will also continue to cultivate a culture of difference and separation, for boundaries between professional roles cultivate the idea “that a certain distinction persists between the roles.”493
Professional rivalries will continue to inform interactions between the professions, as each profession seeks to secure its position within the healthcare system. The current logic of professional law will continue to reward those professions that are able to distinguish themselves with knowledge and abilities—and therefore work—that they can claim for themselves, while at the same time discouraging (at least in part) professions from working together to develop new and better ways of carrying out the work that they share. Because of its functionalist foundation, which takes professions qua social groups as its basic unit of analysis, professional law will continue to perpetuate an important conceptual mistake: that of equating the “skill and the group possessing the skill.”494
These boundary and rivalry dynamics undermine the implementation of interprofessional care, and will continue to do so as long as they remain unaddressed. I propose that one way of addressing these dynamics is to re-examine professional law, and the role it plays in structuring professional cultures and work environments. Of course, my proposition cannot, by itself, offer a complete solution to the implementation of interprofessional care. But it is one of the several necessary measures that require attention.
I concentrate only on professional law in this essay, but there are certainly other obstacles to interprofessional care. I mention two here. First, the law of civil liability in cases of healthcare malpractice poses an obstacle to interprofessional care—a fact that I allude to above. If physicians (to name the most obvious example) bear a disproportionate risk of liability in the context of interprofessional healthcare work, it is natural that they will seek to control their risk. It is also natural that their insurers will require them to control this risk within the work environment, as well as require them to pay more to insure themselves from this risk. Finally, if placed in such a position, it is natural that physicians use all the means at
493 Dallaire & Normand, supra note 417 at 200. 494 Krause, supra note 239 at 5.
124 their disposal in order to control their risk, including the dominant authority granted to them by professional law.
Second, the way professionals are remunerated poses an obstacle to interprofessional care because, as in all domains, remuneration incentivizes and disincentivizes behaviours. If professional remuneration fails to create incentives for interprofessional care, other initiatives are likely to miss their objectives. At the most basic level, professional remuneration should be structured to recognize the time and effort that must go into creating effective and efficient interprofessional teams. If proper interprofessional care is to be delivered, time and effort must be invested for planning, coordinating, discussing and even rehearsing the different types of healthcare scenarios that teams will face. If healthcare professionals are not paid to invest this time and effort, there is little chance that they will.495
495 See e.g. David A Hyman, “Health Care Fragmentation, We Get what We Pay For” in Ronen Avraham, David A Hyman & Charles M Silver, eds, Economics of Health Law, vol 1 (Cheltenham, UK: Edward Elgar, 2016) 551 at 566 (there is no incentive to coordinate care because it does not create billing opportunity).
125 CONCLUSION
The statutes, regulations and institutions of the professional system constitute a way of knowing and understanding workplaces. This is all the more true in highly professionalized workplaces such as those found in the healthcare system, where the legal– institutional framework of the professional system acts as the lens through which the organization of work is examined, through which lines are drawn between possible and impossible ways of working. Seeing workplace organization through the lens of the professional system is necessary and unavoidable because it is the law: both professionals and the people who employ them must conform to the law and respect the work–activity allocations it establishes. The professional system, therefore, is woven into the very fabric of the healthcare system, acting as an unavoidable and powerful structuring force (even though it may receive less attention than other structuring forces within healthcare, most notably financial resources or lack thereof).
The statutes, regulations and institutions of the professional system rest upon a conceptual structure that legitimizes the system’s existence and functioning. This conceptual structure acts as a further structuring force, one that is far more resistant to change than positive law. Modifying statutes and regulations often requires considerable work, but at the end of the day statutes and regulations are but words on a page. The positivity of statutes and regulations makes them relatively easy to change in comparison to their underlying conceptual structures, which are embedded into our culture itself. Indeed, Ronald Dworkin writes that “[w]e live in and by the law. It makes us what we are: citizens and employees and doctors and spouses and people who own things.”496 Modifications to positive law can, despite best intentions, perpetuate the same conceptual structure and the same structuring forces—or cultures—that come with this structure. Conceptual structures are created through discourse that becomes imposed over the world that surround us,497 and that shapes our reasoning.498
I have argued that the current conceptual structure of the professional system emerged at a particular time in Quebec’s history, and in the particular forum that was the
496 Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press, 1986) at vii. 497 Foucault, supra note 96 at 232–234, 244, 248. 498 Burton & Carlen 1979, supra note 95 at 7–8.
126 Castonguay-Nepveu Commission. Although the extent of the concrete changes brought about by the Commission’s work is debatable, one thing appears certain: the Commission produced a discourse that now dominates our understanding of the professional system’s origins and raison-d’être. The conceptual structure created by the Commission’s discourse is the lens through which we now see the professions, their work, and the ways in which they can be organized.
I have turned to history for two interrelated reasons. First, to show that the dynamics of professional law that obstruct interprofessional care are not new, but rooted in history. Consequently, successful reform will need to uproot these dynamics—something that can only be achieved if these dynamics, their structural embeddedness, and their historical resilience are brought to light. Second, my turn to history helps to reveal the contingent quality of our present circumstances. Our current professional law–system and the organizations of work that come with it are not inevitable; they do not flow from a naturally ordained division of knowledge. On the contrary, it is the law that has embedded divisions between professional groups and their knowledge, and led to the accentuation of these divisions over time. These division are historically contingent: the product of historical struggles by various stakeholders, each seeking to establish and consolidate their respective positions over time. Seeing our professional law–system in this light can help us situate ourselves in these historical struggles, and imagine different ways of knowing and working that only appear impossible because of historical chance.
Legislators and policymakers who wish to increase interprofessional care must recognize that they find themselves torn between two poles, both of which are grounded in the professional law–system’s fundamental legitimizing principle: protecting the public. On the one hand, reserved scopes of practice are said to protect the public by making sure that only legally authorized professionals may engage in certain activities. This is the received wisdom of our professional law–system, crystallized in the Castonguay-Nepveu Commission’s Report. On the other hand, further implementation of interprofessional care protects the public by increasing the quality and accessibility of healthcare, while also reducing its cost. There appears to be strong consensus and vocal support for interprofessional care, and the idea that it is necessary for the betterment of our healthcare system—and therefore the public’s health.
127 I argue that these two poles cannot be reconciled. The central role played by reserved scopes of practice in the current structure of the professional law–system and its conceptual underpinnings acts as an obstacle to interprofessional care. The only way to remove this obstacle is to move away from the received wisdom of professional law—the idea that reserved scopes of practice are necessary to protect the public. This will be difficult because the professional law–system’s organization, and the ways in which it divides work between different professions qua social groups, are intimately connected to the notion of protecting the public. The notion that reserved scopes of practice are necessary is therefore remarkably persistent and resilient, both among members of the public (including professionals), and legislators–regulators–policymakers. I suggest that this is because the Castonguay-Nepveu Commission’s discourse established (or at the very least strongly legitimized) a culture of professional regulation—a way of seeing professions and their work. I conclude, as others have before me, that this culture of regulation must change if interprofessional care is to be truly implemented into the healthcare system.499
499 Lahey & Currie, supra note 14 at 205–206.
128 BIBLIOGRAPHY
LEGISLATION
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129 Letters patent of the Ordre professionnel des psychoéducateurs et psychoéducatrices du Québec, CQLR c C- 26, r 208. Medical Act, CQLR c M-9. Medical Act, SQ 1973, c 46. Midwives Act, CQLR c S-0.1. Nurses Act, CQLR c I-8. Pharmacy Act, CQLR c P-10. Podiatry Act, CQLR c P-12. Professional Code, CQLR c C-26. Regulation respecting certain professional activities that may be engaged in by a nurse, CQLR c M-9, r 12.001. Regulation respecting certain surgical first assistance activities that may be engaged in by a nurse, CQLR c M-9, r 1.1. Regulation respecting classes of specialization of the Ordre des infirmières et infirmiers du Québec for the activities referred to in section 36.1 of the Nurses Act to be engaged in, CQLR c I-8, r 8. Regulation respecting the activities contemplated in section 31 of the Medical Act which may be engaged in by classes of persons other than physicians, CQLR c M-9, r 13. Regulation respecting the practice of the medical profession within a partnership or a company, CQLR c M- 9, r 21. Regulation respecting professional liability insurance for nurses, CQLR c I-8, r 6. Regulation respecting professional liability insurance of physicians, CQLR c M-9, r 15. Regulation respecting the psychotherapist’s permit, CQLR c C-26, r 222.1. Regulation respecting the training and clinical experience required of nurses to assess mental disorders, CQLR c I-8, r 15.1. Regulation respecting the training of physicians who wish to practise acupuncture, CQLR c M-9, r 23. Regulation respecting the withdrawal of psychoeducators from the Ordre professionnel des conseillers et conseillères d'orientation et des psychoéducateurs et psychoéducatrices du Québec, CQLR c C-26, r 77.
JURISPRUDENCE
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130 Collège des médecins du Québec c Leduc, 2012 QCCQ 3. Corp. professionnelle des médecins du Québec c Drolet (1991), AZ-91021504, JE 91-1385 (QcCS). Corp. professionnelle des médecins du Québec c Larivière, [1984] C.A. 365, AZ-84011165, JE 84-613. Corp. professionnelle des médecins du Québec c St-Amant (4 December 1987), St-François 450-27- 002750-859 (CqCP sessions de la paix), unreported, available online:
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132 Larson, Magali Sarfatti. The Rise of Professionalism: A Sociological Analysis (Berkeley: University of California Press, 1977). Létourneau, Jocelyn. Le Québec, les Québécois: Un parcours historique (Montréal: Fides, 2004). Linteau, Paul-André et al. Histoire du Québec contemporain: Le Québec depuis 1930 (Montréal: Boréal, 1986). Prud’homme, Julien. Professions à part entière: Histoire des ergothérapeutes, orthophonistes, physiothérapeutes, psychologues et travailleuses sociales au Québec (Montréal: Presses de l’Université de Montréal, 2011). Rousseau, Nicole & Johanne Daigle. Infirmières de colonie: Soins et médicalisation dans les régions du Québec, 1932–1972 (Québec: Presses de l’Université Laval, 2013). Scott, James C. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1999). Starr, Paul. The Social Transformation of American Medicine (New York: Basic Books, 1982). Villeneuve, Jean-Guy, Nathalie Dubé & Tina Hobday. Précis de droit professionnel (Cowansville: Yvon Blais, 2007). Weisz, George. Divide and Conquer: A Comparative History of Medical Specialization (Oxford: Oxford University Press, 2006).
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SECONDARY MATERIALS: GOVERNMENT DOCUMENTS
Commission d’enquête sur la santé et le bien-être social, L’assurance maladie Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume I (Québec: Éditeur officiel du Québec, 1967). Commission d’enquête sur la santé et le bien-être social, Les médecins internes et résidents: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume II (Québec: Éditeur officiel du Québec, 1967). Commission d’enquête sur la santé et le bien-être social, La santé: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume IV (Québec: Éditeur officiel du Québec, 1970). Commission d’enquête sur la santé et le bien-être social, Les professions et la société: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume VII tome I (Québec: Éditeur officiel du Québec, 1970).
138 Commission d’enquête sur la santé et le bien-être social, Les établissements à but lucratif: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume VII tome II (Québec: Éditeur officiel du Québec, 1970). Commission d’enquête sur la santé et le bien-être social, Le développement: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume III (Québec: Éditeur officiel du Québec, 1971). Commission d’enquête sur la santé et le bien-être social, La sécurité du revenu Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume V (Québec: Éditeur officiel du Québec, 1971). Commission d’enquête sur la santé et le bien-être social, Les services sociaux: Rapport de la Commission d’enquête sur la santé et le bien-être social: Volume VI (Québec: Éditeur officiel du Québec, 1972). Committee on the Healing Arts, Report (Toronto: Queen’s Printer, 1970). Gouvernement du Québec, “Budget de dépenses 2015–2016: Renseignements supplémentaires” (Québec: Gouvernement du Québec, 2015). Office des professions du Québec, “Le discours de l’Office des professions du Québec: de 1973 à 1987” (Québec: Office des professions du Québec, 1987). Office des professions du Québec, “L’Office des professions du québec: 25 ans au service de sa mission de protection du public: Anthologie commémorative 1974–1999” (Québec: Office des professions du Québec, June 1999). Quebec, Chambre du Conseil Exécutif, Arrêté en conseil numéro 2046, 9 novembre 1966 (online:
SECONDARY MATERIALS: OTHER
Andrews, Robert. New Penguin Dictionary of Quotations (London, UK: Penguin Books, 2006). Black’s Law Dictionary. 8th ed. Chouinard, Tommy. “Québec veut bannir les frais accessoires”, La Presse (2 May 2016) online:
139 Conseil interprofessionnel du Québec. Newsletter, ISSN-1201-852X, “Info Express: Bulletin d’information du Conseil interprofessionnel du Québec: Printemps 2005: Spécial 30e anniversaire du Code des professions” (Spring 2005). Conseil Interprofessionnel du Québec. Newsletter, ISSN-1201-852X, “Info Express: Bulletin d’information du Conseil interprofessionnel du Québec: Été 2008” (Summer 2008). Conseil Interprofessionnel du Québec. “Histoire du système professionnel québécois” (Montréal: Conseil interprofessionnel du Québec, August 2014) online:
140