On 31 Oct 2011 IBLCE announced, and linked to, the new IBLCE Code of
Professional Conduct (IBLCE CPC), to replace the IBLCE Code of Ethics
(IBLCE COE), effective 1 Nov 2011.  Many of us in the lactation community
were eager to see the new IBLCE CPC, especially after being given a
two-week period where comments on the draft were solicited from
stakeholders and the public at large.    It was gratifying to see that many
of the comments suggesting changes to the draft were, in fact, incorporated
in the final IBLCE CPC.

You can find the final version of the IBLCE CPC at
http://www.iblce.org/upload/downloads/CodeOfProfessionalConduct.pdf.  If
you are an IBCLC, my advice is:  you had better go and see (and download)
that document, for it contains the mandatory rules for your professional
behavior.  Violations of same will subject you to the procedures of the
IBLCE Ethics & Discipline Cmte.  Indeed, the new IBLCE CPC reminds us at
Principle 8.1 that  ***"Every IBCLC shall comply fully with the IBLCE
Ethics & Discipline process"**** (spelled out in the E&D Procedures)

Now -- about those E&D Procedures.

The 31 Oct 2011 alert from IBLCE did offer a couple of links because "New
Disciplinary Procedures[link] and a Complaint Form [link] accompany the new
Code of Professional Conduct."  So-- being the lawyer and procedure fan
that I am, I clicked the link to the Disciplinary Procedures.  It took me
to  the 1 Jan 2011 52-page IBLCE Disciplinary Procedures document
(something I've read and downloaded myself, before).

But that apparently was an erroneous link, for I discovered quite by
accident the other day (7 Nov) that there **is**, in fact, a new E&D
Process. It is dated 24 Sept 2011.  It is an entirely new document,
containing significant changes in the rights and procedures described under
the old version.  It is now (correctly) linked on the IBLCE site, at
http://www.iblce.org/upload/downloads/IBLCEDisciplinaryProcedures.pdf

I am not aware of anyone outside IBLCE who knew the Discipline Procedures
were being entirely re-written at the same time the Code of Ethics was
being entirely re-written.   Since the IBLCE CPC relies upon the
Disciplinary Procedures for enforcement, and since all IBCLCs must subject
themselves to its jurisdiction as a condition of their certification, it
would have been nice if stakeholders and the public at large had a chance
to review and comment upon the E&D Procedures during the two-week period we
were critiquing the CPC.

I encourage everyone to download and fine-tooth comb this document.  There
are significant differences, gravely concerning to me.  If you plan (as I
do) to conduct your practice ethically and professionally, and never to
have a complaint filed against you -- I STILL encourage you to read this
 -- because other areas of our practice and advocacy can be affected.

(1) Students/aspirants for the IBCLC certification.   I. (b) and (c) of the 24
Sept 2011 E&D Procedures is clear: it applies to IBCLC certificants who
subscribe to the IBLCE CPC. Under the OLD E&D Procedures, we were assured
at I.C.(3) that that the [then Code of Ethics] was to apply not only to
current IBCLCs, but to "any and all Applicants for any IBLCE examination."

The new language presents a challenge for Pathway 3 applicants and their
mentors.  Many clinical training sites will want assurances that the
students (Pathway 3 mentees) are to be held accountable to the same ethical
precepts as the profession they wish to enter.  that makes sense, and is
"par for the course" for most professional where students have clinical
training. I do not know why IBLCE retreated from this sensible standard.

(2)  Professional liability insurance.  A corollary is that students/applicants
are able to obtain professional liability insurance, to cover their
mentored clinical training, because they can assert to the insurer they
were part of a sanctioned program holding them accountable to the same
standards, and processes, as those in the field they seek to enter. With
that language ("students have to obey too!") now removed, he liability
insurance is vulnerable, and without insurance, most pre-approved Pathway 3
applications will become invalid.

(3)  Conflict of interest/complaint against IBLCE Director or staffer. The
OLD E&D Procedures set out at IV.D. a recusal process for any complaints --
let us hope they would always be hypothetical complaints -- filed
**against** a sitting IBLCE Director or staffer. The rationale was clear:
 it is a prima facie conflict of interest for IBLCE Board members to sit in
judgment against another Board members, or their staffers.  The 24 Sept
2011 E&D Procedures are now silent altogether on this conflict of interest
scenario.  Note that under a regular old run-of-the-mill conflict-of-interest,
the matter will be referred to another sitting IBLCE  Board member.  This
is pretty standard.  If someone files a complaint against Suzy IBCLC who
works for Hospital X ... and the E&D Committee Chair also works for Hosp. X
... then the E&D Cmte Chair recuses herself for conflict-of-interest, and
the matter is handled by another Board member with no connect to Hospital X
or Suzy IBCLC.  Fair enough.  That is entirely different from the scenario
where the hypothetical complaint is **against** the sitting IBLCE Board
member.

(4)  For those of us who **do** find ourselves at the wrong end of a
complaint, be aware that your rights are different now.

The OLD Discipline Procedures set out at XIX. a detailed process of how a
case would proceed against an IBCLC for whom a complaint is initially
determined to have merit.  It described a formal administrative hearing,
including the accused's right to counsel, and an opportunity to hear and
cross-examine witnesses, even though the formalities of trial evidence were
not required.  A record was to be kept (presumably in case of an appeal).
It was all done under oath.  It was rather a lovely (though by necessity
lengthy) description of a hearing designed to protect the rights of the
accused while permitting examination of allegations of misconduct.

The 24 Sept 2011 E&D Procedures have retreated from this process,
significantly.  At III. and V. we are told that

a.  The E&D Cmte Chair has "sole discretion" to determine if a complaint
that comes into the IBLCE is frivolous or invalid.  So, one person is the
gatekeeper for all procedures that are to follow.  "Sole discretion" is a
whole heck of a lot of power, under the law.  It says:  "I can do what I
want, and I don't have to justify my decision to anyone."
b.  If a complaint is deemed to have merit, the accused will learn of this
they are sent "a copy of these Procedure, a ***summary**** of the
complaint, list of members of the [E&D] Cmte."  Thus, the accused is not
allowed to see the original complaint documents (only a summary) and it is
even unclear if the accused is told, at this point, who filed the
complaint.  The accused has 30 days to respond.
c.  A three-member Review Subcmte of the E&D Cmte is appointed to "clarify,
expand or corroborate the information provided by the submitter."  It is
unclear if the "submitter" here is the original complainant who submitted a
complaint ... or the accused who submitted a response in the thirty-day
window.  "The Review Subcmte may be assisted in the conduct of its
investigation by the IBLCE staff or legal counsel."  Keep that sentence in
mind for a minute....
d.  The Review Subcmte may contact the complainant, or the accused, for
"additional information with respect to the complaint."  It is not clear if
this is after, or part of, the 30-day window.
e.  The Review Subcmte or staff "may at its discretion contact such other
individuals who may have knowledge of the facts ....".  Wow.  It is unheard
of, at least in USA judicial proceedings, for judges and their courthouse
clerical staff to go out in search of evidence.  Rather, they ask the
parties and their lawyers to proffer evidence, under oath and rules of
evidence designed to promote the veracity of the facts.
f.  The Review Subcmte makes a finding, and recommendation of sanction,
which it presents to the full E&D Cmte.  "There is no formal hearing or
trial-type proceeding, no hearing or witnesses, and the rules of evidence
are not applicable.  The Panel may at its discretion permit an informal
oral statement to be made by the [accused] by conference call.  Legal
counsel is not expected to participate in the process, unless requested by
the [accused] and approved by the E&D Panel.  IBLCE may consult IBLCE legal
counsel."
g.  All investigations and deliberations are conducted in confidence, with
all written communications sealed and marked "persona and confidential."
h.  Appeal provided on only two grounds:  material errors of fact, and
failure by E&D to follow the E&D Procedures. "The appeal shall not include
hearing of any other similar trial-type proceeding....Legal counsel is not
expected to participate in the appeal process, unless requested by the
appellant and approved by the Appeal Board.  IBLCE and the Appeal Board may
consult IBLCE legal counsel."  Begging the question of why the adjudicatory
players feel they need a lawyer.  I've never seen the U.S. Supreme Court
Justices lean over and whisper to *their* lawyer.

So, to sum it up:  Nothing under oath.  No right to face the accuser.  No
right to see the original complaint.  All investigatory proceedings
conducted in private, and in confidence, without the accused there.
 Investigations may be conducted sui generis by those serving in an
adjudicatory capacity.   Accused must seek ***and be granted permission***
to use a lawyer, but IBLCE has legal counsel assured all along the way.
 Appeal on grounds of material errors of fact only ... yet the record
containing the facts alleged and investigated is under seal.

(5)  State licensure.  So ... back to those of us who hope never to be part
of any discipline procedure.  In the USA, one of the most important
elements for seeking and obtaining state licensure is the ability to assure
the licensing boards that (a) there is a valid, accredited certification
exam, conducted by IBLCE, that protects the health safety and welfare of
the public at large by measuring the skill of the IBCLC, and (b) there is a
process to further protect the health safety and welfare of the public by
assuring that there is a fair and equitable process to sanction or remove
certificants who do not meet the ethical requirements of the profession.

I wonder if this new discipline process will meet the customary standard,
of fundamental due process rights, that a licensing board will want to see
is in place.

-- 
Liz Brooks JD IBCLC FILCA
Wyndmoor, PA, USA

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