THE CO-REGULATION OF MEDICAL DISCIPLINE IN NEW SOUTH WALES, AUSTRALIA
Dr DAVID G. THOMAS *
A profession can generally be thought of as a group of people following a particular calling whose actions are governed by high standards of both ethics and practice. The latter however, do not fall out of the sky; standards have to be both established and maintained on mutually agreed lines by professionals themselves. This paper is particularly concerned with the second aspect, that of the maintenance of standards.
There are many ways of maintaining standards.
Probably the best is the feeling by individual professionals that they are ethically obliged to deliver services of the highest quality both out of respect for their clients and their fellow professionals.
Failure by an individual brings the whole profession into disrepute. However, another aspect of standards-maintenance is through the exercise of discipline against those professionals who do fall short of the standards required both by mutual consent and very often by law. In this respect, a leading Australian sociologist Daniel makes the very important point that "Public perceptions of a profession will be governed the way discipline is seen to be applied and enforced in the profession" (Daniel, 1995) [author's emphases]. That statement has strong echoes of the old saying: "Justice must be seen to be done." In this light it can be asserted that the application of discipline is one of the most crucial aspects of professionalism.
If that was always true, it became even more true during the second half of the 20th century when ideas about consumer rights and provider responsibility and duty of care moved to the forefront of public consciousness. Accountability became one of the great watchwords and catchcries of public life. Surprisingly this development tended to catch the medical profession offside because, as the emergence of the Hippocratic oath around the 5th century BCE testifies, physicians from the earliest times had a consciousness of their professional responsibilities. Primum non nocere ("above all, do no harm") was their watchword.
When an early medical professional association, the College of Physicians, was established in 1518 in London, its articles of association included a disciplinary clause that allowed physicians who were considered to have fallen short of its standards, to be expelled, or more euphemistically, to have their names struck off the medical register.
A difficulty for early starters in any field however, is that the world changes and all too often they fail to change rapidly enough to meet changing circumstances. This was true of the medical profession. While early associations of physicians were aware of the necessity of disciplinary measures, the grounds on which discipline was to be exercised were very different to those which emerged later, since what the early associations were concerned with was that their members were upright and honourable members of society and respected its morals and mores. Those who failed to do so were, in the words of the statutes of the Royal College of Physicians (it became "Royal" when granted a charter by King Charles II) were adjudged to be guilty of "infamous conduct in ... professional respect" and therefore liable to being deregistered. In the words of Freckleton (1996):
[T]he criterion for continuing professional practice has widely been regarded as being whether the practitioner has slipped from being of good fame and character bespeaks a concern on the part of the professions with the reputation of the practitioner and public face of the profession (p139).
For more than three centuries a practitioner's "fame" if not his( reputation was seen to depend on his good character, not on his practice standards. As pointed out by Berlant (1975), infamous conduct did not include "mistakes or incompetence short of gross malpractice and gross incompetence" (p161). That that situation persisted well into the 20th century is evident for instance in a publication commemorating the centenary of the British General Medical Council (or GMC), which was published in 1958. Its then registrar Pyke-Lees reported that among the 200 doctors who had been deregistered in the 50-odd years since 1900, "77 have been erased for adultery or improper conduct with a patient, 53 for procuring or attempting to procure abortion or miscarriage, 45 offences connected with drink or drugs" (1958, p27). Absent from that list of miscreancies is anything connected to practice standards.
Pyke-Lees's book was published at the cusp of medical disciplinary eras. Paradoxically it was as medical treatment became more efficacious as a result of the rise of scientific medicine in the late 19th and early 20th centuries that public expectations of the professions became much more exacting. Before this time, it was generally accepted that the ability of medical practitioners to mitigate the effects of disease and ageing was limited, while early death was accepted with fatalistic resignation.
The rise of microbiology and the concomitant rise in knowledge of the aetiology and control of disease, the increasing success of surgical techniques and interventions, the most of all the discovery of antibiotics, all helped create the idea that "the illnesses to which human flesh is heir" had been conquered and that all individuals could anticipate living a long and healthy life.
In this new climate of thinking attitudes towards the medical profession changed. While on the one hand doctors were seen to be heroic miracle workers, on the other hand their practice failures were regarded with the vengeful savagery of those whose high expectations had been betrayed.
That provoked a new emphasis on medical discipline not so much in the profession itself, as among the public, as Pyke-Lees himself observed with some surprise when he stated "[T]o the general public, and to the Press ... the [General Medical] Council is concerned above all with discipline" (p25). Ever attentive to their electoral interests, governments also began to take much more interest in questions of medical discipline and thus to become much more critical of medical regulatory bodies which seemed to be failing to exercise such discipline.
All too often those regulatory bodies responded too slowly to the new climate and demands for professional accountability. To illustrate that point I am going to focus on the particular jurisdiction in which I live and work, the State of New South Wales in Australia. This State it should be said, is by no means an inconsequential entity. It has a population of over six million, which twice the size of that of Ireland for instance, and also many of several countries which recently joined the European Union such as Latvia, Estonia and Lithuania.
There are 25,000 registered doctors in New South Wales (referred to as NSW from this point onwards) which as part of the federal system in Australia, is governed by a parliament exercising sovereign power over medical regulation and therefore over medical discipline. Developments in this sphere in NSW have mostly mirrored those of other jurisdictions around the world, although over the last ten years NSW has diverged from world practice in one crucial sphere, that of medical discipline. In a unique development, NSW has applied a system known as collaborative regulation, or the co-regulation of medical discipline, in terms of which a "lay" body, the Health Care Complaints Commission, shares the exercise of medical discipline together with the local Medical Board.
Up to 1994, medical discipline in NSW has been wholly under the control of its Medical Board, a body that traces its origins back to 1838, although it only began exercising real regulatory power from 1901. This Medical Board was a typical regulatory body, which followed the pattern established in Britain in 1858 with the formation of the General Medical Council (referred to from this point as the GMC). Both of these bodies and others established around the world in the late 19th and early 20th centuries to regulate medical practice, operated in terms of "peer review", that is on the principle that only doctors were able to judge the actions of fellow doctors when it came to the exercise of medical discipline.
This principle had been enshrined in law by the Allinson case of 1894 in which a medical practitioner had appealed to the High Court in Britain against being deregistered by the GMC for "infamous conduct". In that case Justice J Lopes held that British courts would not overturn disciplinary decisions of the GMC since these had been taken by the "professional brethren of good repute and competency" of the accused doctor.
That precedent was followed around the world and also in NSW. Here in 1917 Mr Justice Pring rejected an appeal by a Dr Cline against his deregistration by the Medical Board on the grounds that "this court is very loath to disturb the finding of a board of professional men whose knowledge of what may be termed professional misconduct must be very much greater than the court can possess." ((1917) 314 WN NSW 127).
Secure behind this legal precedent, the Medical Board over the next sixty years applied disciplinary action against doctors mainly on the grounds of financial fraud and addiction to drugs or alcohol, while ignoring issues of negligent or incompetent practice (Thomas, 2002).
The most glaring example of this related to the case of the Chelmsford Private Hospital, in which over nearly two decades between 1960 and 1980, an unproven procedure known as "deep sleep therapy" was applied to hundreds of patients, 25 of whom died as a result while many more suffered various degrees of mental trauma and damage. When the media discovered the story, it made headline news for years on end. Despite a growing public furore, no action was ever taken against the doctors responsible for administering the treatment.
The failure of the Medical Board to act on the Chelmsford affair forms a typical example of what was referred to above, namely the failure of medical professional bodies to adapt quickly enough to the changing temper of the times. Not only were there the rising expectations of Medicine among the public discussed earlier, but it was precisely at the time of Chelmsford that the consumerist movement, with its demands for public accountability and transparency, was demonstrating increasing political strength, to which governments were responding by establishing Departments of Consumer Affairs and also new "counter-bureaucratic" offices such as those the Ombudsperson.
Almost fatally against its own interests, the Medical Board of the time took no cognisance of these developments or of the efforts of the NSW government to galvanise it into action not only on the Chelmsford issue, but also in response to a rising tide of consumer complaints against both individual medical practitioners and medical institutions.
Thus in 1984 the government, as embodied by its Minister for Health, moved towards taking responsibility for medical discipline by establishing a "Complaints Unit" within the Department for Health, this being probably the first body of its kind in the world dedicated to receiving and investigating consumer complaints about failures of medical treatment. It is important to note that this Unit was staffed by non-medical personnel, its first two directors having worked for consumer advocacy agencies before they joined the Unit's staff.
It was partly through the highly activist efforts of these figures that the Medical Practitioners' Act 1987 was passed. This constituted a historical legislative watershed that swept away the old "infamous conduct" grounds for medical discipline and instituted new regulations that defined professional misconduct as a lack of adequate knowledge, experience, skill, judgement or care. Smith, a legal commentator, complained that the new definition was "far wider than that deriving from common law" and that the new Act exceeded "the justifiable limits of disciplinary control of the medical profession" (1994, p47) It can only be remarked in response that the pendulums of history seldom swing in moderate arcs.
The Act also reformed the Medical Board, bringing in many more lay and legal members as well as representatives of the consumerist movement. While doctors remained in the majority, the control of the Board by their professional body, the Australian Medical Association, was broken. None the less, it is not surprising that the members of the Medical Board reacted to the creation and activities of the Complaints Unit with some suspicion, especially because the Unit had been given much wider and stronger powers by the Act.
Despite that however, the exclusive right of the Medical Board to exercise discipline remained unchanged and any action against a practitioner or against an institution had to be referred to the Board by the Complaints Unit.
It was a situation that could have resulted in confrontation and deadlock. That however, was avoided by the political skills of its director, Ms Merolyn Walton who made it her business to establish both official and unofficial contacts with officials of the Board. She was able to convince them that the Complaints Unit could actually help the Board to improve its disciplinary performance since the Complaints Unit had developed investigatory capacities that the Board lacked and was willing to put these capacities at the disposal of the Board. Her offer was accepted and an informal and mutually complementary working relationship was established. That relationship in fact, formed the foundation of the collaborative regulatory system that developed later. The informal collaboration proved to be so fruitful and effective that it was formalised by the 1987 Act, which required the Complaints Unit and the Board to inform each other of the complaints each body received.
Once again this relationship proved to be very successful and in the early 1990s the NSW government took it further, passing legislation which required the two bodies not merely to inform each other of complaints, but together to consider the complaints which came before them and to decide together on what action should be taken in response to those complaints.
This was also a watershed move, because for the first time in close on a hundred years in NSW and indeed in the whole world, the system of medical peer review had in effect been abolished in this particular jurisdiction. In terms of this unique development a government had recognised the right of a lay body not only to participate in the review of medical complaints, but also more importantly how they should be handled and what kind of discipline should be applied when it was decided that that was necessary.
As has been demonstrated, up to that time, medical discipline had been the sole and exclusive province of the Medical Board and indeed this remains the case both in the other States of Australia and in the world outside.
The new system of collaborative regulation came into effect in 1994 when a law was passed which transformed the status of the Complaints Unit from a mere subsection of the Department for Health to that of a fully-fledged statutory authority, the Health Care Complaints Commission (HCCC). Perhaps the actual mechanics of the co-regulatory system are not so important at this point, but what can be said is that it has worked well. In the words of Dr Alison Reid, medical director of the Medical Board:
The New South Wales system provides a rigorous and consistent approach to the assessment and subsequent management of complaints and notifications received by the Medical Board or the Health Care Complaints Commission. Central to the success of the approach is the collaborative relationship between both bodies (Reid, 2001).
One interesting side-effect of the new system is that when major disputes and confrontations relating to medical discipline arise in NSW - as is the case at the moment - it is the lay body, the HCCC, which takes the brunt of the criticism, not the Medical Board. This contrasts with the situation in Britain for instance, where the GMC has been severely criticised over recent years for among other things, its perceived failure to act quickly enough in the Shipman case.
The current dispute in NSW revolves around alleged failures in two hospitals in Sydney that led, among other things, to 17 seemingly avoidable deaths.
While the HCCC was certainly not slow to investigate the situation once it had been highlighted by whistleblowers among the nursing staff, its report blamed the system and the inadequately resourced conditions under which clinical staff had been working rather than the clinical staff themselves.
The refusal of the Complaints Commissioner to "name names" in the report led to her being unceremoniously sacked earlier this year. The Commissioner's position was determined by an ideological aversion to blaming medical staff for failures, an approach that is widely shared in Australia.
But that of course, does not suit the State government, because if as the Commissioner argued, it was the system and not individual doctors who were at fault, then the blame for the deaths and substandard treatment at the hospitals in question lies with the government that is responsible for the system.
The government therefore has moved to ensure that the HCCC does call individual clinicians to account for their actions and in this respect it has invoked the law as it stands in the 1994 Act.
However, the co-regulatory system created by that Act means that final decisions on whether to proceed with disciplinary action against the clinicians, have to be taken together with the Medical Board and we in NSW are awaiting with great interest to see how the situation is played out in that scenario.
It is very possible that these two bodies acting together in terms of law, will thwart or blunt governmental determination to divert blame from itself for failures in the hospital system.
In conclusion, it might be remarked that the collaborative regulatory system in NSW has had the effect of shielding both the Medical Board and the medical profession from the full fury of public and media reaction to the deaths in the two hospitals.
From this point of view, it could be said that co-regulation has not only worked well in dealing with complaints, but has also served the interests of Medicine much better than the older system of peer review.
NOTES
* School of Public Health and Community Medicine, University of New South Wales
( The sexist terminology used here reflects the almost total dominance of the medical profession by males up to the late 19th century.
BIBLIOGRAPHY
Berlant, J.L. (1975), Profession and Monopoly. A Study of Medicine in the United States and Great Britain. Belkeley: University of California Press.
Daniel, A. (1995). Medicine and the State. Professional Autonomy and Public Accountability. Sydney: Allen & Unwin.
Freckelton, I. (1996). Enforcement of Ethics. In M. Coady & S. Bloch (Eds.). Code of Ethics and the Professions. Melbourne: Melbourne University Press.
Pyke-Lees, W. (1958). Centenary of the General Medical Council, 1858-1958. London: General Medical Council.
Reid, A. (2001). A Collaborative Model of Complaints Assessment Management. 3rd National Health Care Complains Conference, 29 & 30 March, 2001. Paper presented at the Getting Better Together; Using Complaints to Improve the Quality of our Health Services. Victoria University Conference Centre, Melbourne, Australia.
Smith, F. (1994). The Disciplining of Doctors under the Medical Practitioners' Act 1938, Legal Studies. Sydney: University of Sydney.
Thomas, D. (2002). The Rise and Recession of Medical Peer Review in New South Wales, 1856-1994. Unpublished Doctoral Thesis, University of Sydney, Sydney.
Copyright 2004. Greek Legal and Medical Conference