Page - 493 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

493Risking It All: Providing Patient Care and Whistleblowing During a Pandemic Do these problems warrant a second look at self-regulation for PSWs? The matter was last considered in 2006 by the Health Professions Regulatory Advisory Council (HPRAC). This body rec- ommended against self-regulation for a number of reasons, including the absence of a defined body of knowledge for PSWs; the workers’ apparent lack of widespread support for self-regulation; the vicari- ous liability of employers for acts of professional misconduct in the workplace; and the economic impact of regulation. Although there were efforts to form a PSW Register in Ontario, those attempts proved unsuccessful.19 In our view, a number of factors could justify reopening of this debate. First, more and more health care workers are self-regulated, including practitioners of traditional Chinese medicine and acu- puncturists, naturopaths, and homeopaths. Second, as noted, the scope of practice of PSWs is expanding. Third, as Pat Armstrong, Hugh Armstrong and Ivy Bourgeault note in Chapter E-1 of this volume, the complexity of the care, especially in the LTC setting, is increasing. This points to a need to develop standards of care and a code of ethics that could guide PSWs. We are mindful that self-regulation is not a panacea and there may be disincentives to this approach.20 More generally, there are concerns about “bias, lack of transparency and regulatory capture” inherent in self-regulatory model.21 But given the problems that have been exacerbated by the COVID-19 pandemic, we feel it is worth considering. The Responsibilities of Health Care Employers Governments and health care employers, such as hospitals, LTC facili- ties, and others, bear the responsibility to protect health care workers and to promote high quality and safe care.22 This includes putting 19. Some years following the HPRAC report, in 2011 Ontario decided to create a PSW Registry, as exists in British Columbia and Nova Scotia. However, in Ontario, the registry was shut down in 2016: not all PSWs were registered and the information provided in the registry was unreliable. 20. Christine Kelly & Ivy Lynn Bourgeault, “The Personal Support Worker Program Standard in Ontario: An Alternative to Self-Regulation?” (2015) 11:2 Healthcare Policy 20 at 25. 21. Joanna Erdman, Vanessa Gruben & Erin Nelson, eds, Canadian Health Law and Policy, 5th ed (Toronto, LexisNexis Canada, 2017), chapter 6 at 172. 22. Katherine Lippel, this volume, Chapter E-3.