A President’s personal view on the future of medical regulation

Here is what I’ve learned from my time with the Medical Council

I was so uncomfortable with the fear that most doctors feel about an email from the Medical Council that I decided to get involved. I attribute my dislike of not understanding hazards to my training in anesthesiology, which has at its core an understanding of the human body and how it reacts to threats.

My term as an elected member of the Council passed in the blink of an eye and has come to an end. Like most public bodies, membership is capped at eight years.

The lessons I have learned from this experience are many and reinforce the need to know what you are facing – in medical practice, as in life itself.

Firstly, almost every doctor wants their patient to do well and wants safe and effective medical practice. A malignant lone wolf, a Harold Shipman, is exceptionally rare. Regulation is not structured to find aberrant personalities who commit crimes using their medical knowledge.

Upstream and downstream regulation

Regulation raises the quality of medical care through vetting qualifications and maintenance of the register and the application of high standards of practice. These upstream regulatory measures are effective, fair, and well accepted by the public and the profession.

The anxiety experienced by doctors about regulation lies in the downstream regulatory measures: Complaints, investigations, and the legal powers to stop a doctor from practising. Instigated by a complaint to the regulator, these procedures rely on near-misses or harm occurring. They are a delayed form of regulation.

Currently, it is mostly the person who is harmed who complains. The health system and the profession itself are slow to refer a doctor to the regulator.

Regulation embedded in regional health services might address competency issues or conduct-related concerns more quickly and more effectively. This is being developed in Canada, where inquiry and sanction are used for only the most egregious conduct. Instead, local coaching and supervision are mandated for competency issues in clinical practice, such as unsafe prescribing, or failure to carry out sufficient handover.

Serious misconduct

The reluctance to refer is due to the potential of a strike-off. Although the seriousness and complexity of complaints is increasing, only one to two doctors out of the 33,000 practitioners on the register each year have their registration cancelled. Cancellation is a draconian sanction grounded in public protection. In the last eight years, this ultimate sanction has been considered for criminal convictions for rape, possession of child sexual abuse material, and intimate partner violence, among other significant breaches.

Though uncommon, these cases leave a lasting effect on the whole regulatory team, from case officers to Council members. The incidence among our regulatory caseload mirrors the incidence in the general population – because doctors are fallible humans first and are doctors second.

Increasing sexual misconduct complaints is an international phenomenon, with other healthcare regulators experiencing the same. The increased number of complaints concerning inappropriate conduct from doctors to colleagues and patients is a positive thing in the short-term, as it indicates a growing awareness of the problem, and that people are less afraid of coming forward.

Intervening in serious conduct breaches, especially where they make people feel unsafe, is urgent and necessary. Every stakeholder in the health system, from universities to postgraduate training bodies, to employers and regulators, plays an essential role in ensuring that misconduct is managed proactively.

It has been my experience in regulation that conduct issues are far more challenging to address than competency issues. Conduct is less open to insight and less amenable to change.

Professionalism

For this reason, professionalism ought to be examinable in the curriculum and have an earlier and more prominent place in the lifelong education of doctors.

Professionalism includes communication, which is at the core of many concerns raised by patients. A communication deficit as a sole issue will not usually progress to a fitness to practise hearing. But poor communication and distrustful relationships contribute to near-misses and dissatisfaction within the health service. When more complex concerns are raised, communication failures are a recurring factor in incidents resulting in harm.

Secondly, although regulation is a separate process to the civil and criminal legal system, there are points of overlap. Adversarial arguments in medical negligence cases spill over into regulation, bringing a febrile tenor to the regulatory process, which was set up to find out how an event occurred and how a repeat incident can be prevented. Legal costs climb and delays occur when processes intertwine, making mediation far more challenging.

I have met families and doctors embroiled in years of coroners’ inquiries, civil redress, and regulatory curtailment of their practice, with little discernible improvement in patient safety. A compensation scheme for treatment injury, which does not pit the health system against the patient after a complication, ought to be a priority in restoring trust, recognising the harm that can result from medical treatment, and learning from it.

Thirdly, in analysing treatment harm, the ‘Swiss cheese’ model captures the importance of teams in patient care. Poor patient outcomes are often due to multiple small errors by different members of the healthcare team, from administrators to bioengineers, laboratory scientists, managers, pharmacists, nurses, and doctors.

Depending on how the errors line up and affect the patient, responsibility coalesces on the people directly caring for the patient. As a healthcare professional, the professional stakes get higher the closer to the patient you are.

Each professional is regulated individually by a different regulator with their own requirements, with no capacity to intervene across the team. Health service managers, who make decisions which impact on patient care, are not regulated. There is scope to regulate the entire healthcare team, which would better reflect the modern reality of patient care. Australia has moved in the direction of co-regulation with its combined regulator, the Australian Health Practitioner Regulation Agency. In the UK, following several healthcare scandals, regulation of managers is to commence.

Lastly, healthcare professionals are caring and kind people who witness traumatic experiences and misery throughout their working lives. These experiences take their toll and can manifest in cynicism and burnout. Doctors are particularly poor at caring for their own health and some reach for maladaptive coping mechanisms, using alcohol and drugs to excess.

Ill health can bring a doctor under the remit of the Council because of the patient safety implications, especially with addiction, which is often characterised by a lack of acceptance. In recent years, the Council has placed greater emphasis on supporting doctors’ wellbeing, collaborating with the Council’s health committee, the Royal Medical Benevolent Fund Society, and Practitioner Health Matters Programme to confidentially refer doctors for independent health and welfare support.

The future

Where should medical regulation go in the future? In my opinion, regulation should be much closer to the patient and their healthcare team. It ought to be in partnership with services and close enough to see timely details on resourcing, supervision, and workload. Its upstream measures of registration and education must be rigorous, and its downstream measures must be responsive, compassionate, and proportionate. Fair compensation and apology for treatment harm should largely replace adversarial litigation.

As the health system moves to diversify care to technology and a wider range of professionals, fresh thinking on regulation must reflect the evolving relationship between patients and their healthcare team.