Unauthorized Practice: Strategies that Work
Perspectives for the Professions
Regulators have an obligation to protect the public from unqualified, unauthorized persons practicing the profession. Regulating this risk to the public is challenging. Regulators have a variety of approaches and tools to secure compliance with their governing statutes. While regulators have to stay within the limits of those governing statutes, there is still room to identify strategies that work and to refine those that could work better.
Statutory Context and Tools to Address Unauthorized Practice
Developing an appropriate, effective and proportional response to the unauthorized practice of your profession requires you to first consider your profession’s regulatory model and the legal tools you have at your disposal. Your governing statute defines the regulatory model and the available tools.
For example, some regulatory statutes create an “exclusive scope of practice”. Under these statutes no one may engage in the practice of the profession unless they are members of the regulatory body with authorization to practice the profession. These regulatory statutes often authorize the regulator to seek an injunction prohibiting anyone who is not an authorized member of the profession from engaging in the practice of the profession. They may also make practicing an offence punishable by fines.
Regulators dealing with unauthorized persons under these “exclusive scope of practice” models can warn them that they will ultimately seek an injunction to prohibit them from practicing, or commence a prosecution of an offence to secure compliance with the statute. Regulators governed under other regulatory models such as a “right to title” model or a “restricted activities” model will have similar tools at their disposal however it is important to carefully review your legislation as the ability to pursue these types of remedies may be subject to conditions such as a requirement for Ministerial authorization.
Locating and Securing Evidence
Locating and securing evidence of unauthorized practice can be straightforward. Often, unauthorized persons will come to your attention because they are advertising using websites, social media or by more traditional means like billboards, business cards or phonebooks. Copies of online materials along with an indication of when they were accessed and copies or pictures of other sources along with notes about when and where they were collected can be sufficient evidence to apply for an injunction or prove an offence.
Where the unauthorized practice is less overt, locating and securing evidence can be difficult. Regulators investigating unauthorized practice generally do not have the power to demand information from non-members. In those cases you may be relying on statements from individuals who were offered, or received services. It is important to contact and speak with those individuals about what happened as soon as possible, before their memories fade or they become difficult to reach. It is also important to obtain their detailed written statements about what happened and gather any relevant documents from them at the same time.
Strategies, Tips and Techniques That Have Proven to be Effective
Some regulators rarely have to deal with unauthorized practice, but for others it is ever present. Here are strategies, tips and techniques used by some regulators to great effect:
- Locate and secure all of the available evidence before you first contact a person suspected of unauthorized practice. Obtaining compliance should be your goal but the evidence, or even the person might disappear when you make contact, making enforcement much more difficult.
- Consider making your first contact a telephone call. Polite telephone inquiries about a person’s activities can yield substantial information. Make a plan before the call with the questions you want to ask. Record detailed notes during the call and complete them immediately afterwards. These notes can be important evidence. A telephone call also provides an early opportunity to engage with the person, explain your concerns and clarify any misapprehensions the person may have about the law.
- Follow-up with a letter politely but firmly requesting the person’s compliance with the statute and include a reasonable deadline. It may be worthwhile to develop a form that you ask the person to complete and send back with a description of their activities. You may also invite the person to provide you with any additional information they want you to consider. You may be surprised at how often you obtain useful evidence in this way.
- If the above steps are ineffective consider referring the matter to your organization’s lawyer and asking the lawyer to send a letter demanding the person’s compliance and indicating that a failure to comply may result in legal proceedings pursuant to the governing statute. This is often enough to obtain compliance or to at least get an otherwise unresponsive person to respond.
- Consider preparing a simple chronology of everything that has happened from the point in time that you became aware of the matter to the point that you are referring it to the lawyer. Attach copies of all of the evidence you have collected and copies of any other relevant documents and correspondence. Preparing this chronology in advance can help minimize your legal costs when the matter is referred to your organization’s legal counsel.
- If voluntary compliance can’t be obtained, consider instructing your organization’s lawyer to commence legal proceedings in accordance with your governing statute, such as an application for an injunction. This will consist of an Originating Notice of Motion and Affidavit evidence to establish that the person has engaged in unauthorized practice. The lawyer will use the evidence you have collected to prepare the Affidavit. The Originating Notice and Affidavit will be filed in Court and served on the person to commence the legal proceedings.
- Persons facing legal proceedings may be prepared to comply with the statute if they can avoid incurring legal costs. Consider asking your lawyer to propose a Consent Court Order requiring the person to comply with the statute but providing that they will not pay legal costs. Once filed with the Court, a Consent Order is enforceable just like any other Court Order. If the person later breaches the Consent Order they can be held in contempt of court and fined or incarcerated if necessary.
- Once an unauthorized practice matter is concluded, consider publishing a summary of the issue, your regulatory body’s response and the result in your profession’s newsletter or on your organization’s website. Publishing enhances transparency and public confidence in the regulation of the profession. It can also dissuade others from engaging in unauthorized practice. Note that before publishing any information it is important to consider your organization’s privacy obligations. Consider seeking legal advice before proceeding.
Field Law’s Professional Regulatory Group has experience investigating and prosecuting unauthorized practice matters and we can help you secure compliance in accordance with your regulatory mandate.
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