Saving Polly: can the regimen of professional self-regulation be revived?

1. Saving Polly: can the regimen of professional self-regulation be revived? Daniel Klass MD FRCP, FACP Brisbane, Australia, Dec 10, 2007

2. “Its not who I am underneath, its what I do, that defines me” (Batman) “I grew up among wise men, and learned, it is deeds that count, not words. Knowledge is not the main thing, but deeds. (Moses Maimonides) “ The secret of the care of the patient is caring for the patient” ( Francis Peabody)

3. Overview • Begin with: a tale of perceived disasters, unmet expectations and failures of regulation • Describe an emerging model of self regulation based on a cultural change to a new professionalism • Conclude… challenge of work in progress, much of it research and assessment based, supporting ongoing adaptations that may save Polly

4. The dead or dying parrot • “Professional self-regulation exhibits all the vital signs of a dead parrot: it is definitely deceased; it is pushing up the daisies, it has joined the choir invisible; it is bereft of life; it has met its maker; it is no more; it is bleeding demised”. • H.W. Arthurs, former Superior Court Justice, Province of Ontario, 1995… quoting Monty Python’s famous Dead Parrot skit.

5. Is this the job for a doctor? • Diagnosis, prognosis and prescription are reserved medical acts: (in most jurisdictions, communicatingthe diagnosis of death is one of the most tightly guarded acts of the medical profession) • Today, I have taken it as my special task, to offer a diagnosis, prognosis and prescription for the medical profession as a self-regulated entity • My diagnosis is “stillalive”, the prognosis is “guarded”, and prescriptions for treatment arduous and costly, but will make the case that the bird may already be arising from its ashes.

6. What is the case for self regulation?

7. Fourfold Rationale for Self Regulation* • Nature of practice; high stakes, highly valued, but clouded by inevitable uncertainty • Claim that the nature of practice demands such an unusual degree of knowledge, experience, skill and judgement that no ‘outsider’ ‘understands’ sufficiently to qualify to adjudicate • Claim of collectiveresponsibility and trustworthiness • Claim of ability to ensure discipline of its members (i.e. ability to regulate itself) *modified from Freidson 1970

8. Professional soft spots • High stakes, high Profile regulatory failures and suspicion of protecting doctors not patients • Evidence for systematic failure to perform at expected professional levels • Late recognition that competence is resident in more than just the doctor and failure to engage in “systems” of care delivery

9. Era of High Profile High Stakes Regulatory Failures Many Jurisdictions: Financial, Public Utilities, Blood Services, Health Care. Dramatic breakdowns of health, safety and trust • Baby Deaths (Surgical incompetence CH of W) • Tainted Blood Scandal, (Cdn. Blood Services) • Tolerance of Botched Surgery, Incompetent Pathologists • High on the list, poisonings, sexual, financial, abuse of patients Common questions, “Who is minding the store”, “is the fox guarding the chicken coop” or “you just can’t trust the buggers”

10. Case in point Headline from the Times of India* • “2 docs get jail for boy’s death” ‘Gaurav was operated on for tonsillitis, died of Anaesthesia overdose’ Convicted under Section 304a ( death by rash and negligent act) under Indian Penal Code. (Beside the article is a grisly cartoon of two snakes with blood dripping from their fangs, and, a strangely contrasting insert headlined “Hyderabad docs on strike, 10 infants die”) *December 04, 2007.

11. The defeat of trust The centrality of Doctor Harold Shipman…doctor and poisoner • “We thought he was a fine doctor, we just didn’t expect him to poison our father” • Post-hoc risk analysis...”a black swan”, unpredictable ‘one off’ psychopath…too bizarre to prevent • Dame Janet Smith, in review of ‘normal’ cases, ‘benefit of the doubt given to the doctor’….opposite of governance in the public interest • Who is minding the store? Where is the accountability?

12. Consequence: attenuation of autonomy of work-related judgements • Traditional stance of courts has been to respect the authority of professional judgment so long as process standards are satisfied • More and more, courts have overturned professional adjudications and substituted their own judgment for that of expert committees • Generalization of the comments of Dame Janet Smith re “benefit of the doubt” and indicative of general “loss of trust”

13. Jane Jacobs, wise public observer* • In the professional role of self-policing, professions not dealing well with fraud, malpractice, behaviour bordering on the criminal…. • “there is no quicker way for a profession to lose public respect than to cover up, institutionally, for members who have done arrant wrong…” • Since self regulation is based on trust, loss of respect is tantamount to loss of self governing status *Jane Jacobs, ‘Dark Age Ahead’, Vintage Canada, 2004.

14. Professional standards issues In addition to falling short of public expectations, evidence also exists for the profession falling short by its own standards

15. Double edged sword of evidence-based medicine • Some irony…a great strength in medicine is its empirical grounding and scientific basis for judgements (EBM) • Recent emphasis on systematic use of outcome data to guide policies reveals that….more and more, Competence really counts ….BUT at the same time • Compelling evidence that medicine is not as competent (safe effective or caring) as it could be

16. Evidence of a quality and safety gap in the delivery of health care as judged by professional standards • US Institute of Medicine; To Err is Human • CMAJ; Baker, Norton et. al. Canadian Adverse Events Study • NEJM; McGlynn et al. Quality of Health Care • Greenfield/Wennberg; wide individual/regional variance in standards and outcomes • Hard Evidence ( malpractice and complaints) of unmet expectations (mainly at the level of communication)

17. Failure to engage in “systems” • Bosk* noted the failure to close the loop between individual professional action and system accountability, remediation and reconciliation • In the current context, the drive (public, corporate and state) for system accountability has become intense but the struggle with the lack of engagement of the profession continues*Charles Bosk,Forgive and Remember Univ of Chicago, 1979

18. Bottom line: promises are meant to keep • Profession claims status but on two key rationales for self governance, has not verified delivery on promises of a disciplined profession or disciplined practitioners • The promises cannot be unilateral assertions; they must be a result of bilateral agreements • Any profession can expect to lose its privileges if it fails to make good on its promises

19. The place of a profession in society What is the proper relationship between the public and a profession?

20. Wind chimes and regulation • Regardless of the content and process of regulation in society there must be an underlying “contractual” understanding about the relationship between professionals and public that defines the limits of professional actions as determined by a set of public expectations • Clear boundaries are to be expected

21. Levels of Professional Regulation: the wind chime model Societal Expectations, Laws, Regulations Stable state Professional Standards Individual Practitioner Actions

22. Levels of Professional Regulation: the wind chime model Society Winds of change Profession Individualdoctor

23. Levels of Professional Regulation: the wind chime model Societal Winds of change Professional Individual

24. Levels of Professional Regulation: the wind chime model Society New steady state Profession Individualdoctor

25. The boundaries and limits of the ‘chimes” form the “discipline” of a profession What is referred to loosely as “the social contract” is really a multidimensional and complex set of arrangements

26. Control of medical workplace • Three levels of control (logic) in the work of professional*; • Free market • State (Rulers, governors, legislators, bureaucracies) • Professions (occupational) • Over time there has been a dynamic interplay across these levels…mainly devolution from state control associated with democratization *Freidson

27. Locus of control in professional situations STATE PROFESSION MARKET

28. Locating control in medical situations STATE PROFESSION MARKET

29. Locating control in medical situations STATE PROFESSION MARKET

30. Locating control • Control depends on the location of situations within the triangular envelope • Wide range of possibilities…contingent on circumstances

31. Control of, autonomy over range of issues… form grounds of debate for “social contract” • Professional Issues; independence of judgment, freedom to be judged by peers, control of “knowledge”, definition of scope, policing • System, Institutional Issues; ability to control workplace environment, working conditions, risk management • Market Issues; remuneration, market control, profit

32. The geography of medical governance If “trust” is the central value for professional status, then the priority is on professional issues…and adetailed look at the “scope of regulatory activity” in medicine is important

33. Scope of Regulation for individual and system competence Entry to PG test Entry to practice test Accreditation Accreditation ?Accreditation? Standards: Monitoring, Revalidation, CPD, Complaints, Suits, Discipline Training component Med school Postgrad training Entry training Public outcomes

34. Prevalent varieties of (medical) regulatory failure • Failure to prevent, detect, educate or correct ‘non professional acts’ over the broad spectrum of regulatory activity, • from entry to professional education • through training for practice • Entry to practice • Occupational educational discipline: maintenance of competence in practice • Corrective Discipline in practice

35. Special task of professions • “The special task of doctors is to inform their patients who they are to be”*…ergo • The special task of a ‘profession’ is to inform the public of what to expect of their members, both the scope of authority (expertise) and standards of behaviour within that scope …and • to be accountable at the highest standards for the “promises” of the profession of the performance of its members • …trust must be earned *Erving Goffman, Stigma

36. Core of professionalism The focus of regulation must be based on the idea of competent behaviour • defining • implementing • measuring • reporting • improving • correcting

38. Essential Conflict • Bosk* described the core of conflict between the arguments of the professions for the preservation of “self regulation” and the needs of society for a greater sense of accountable behaviour from the professions • Professions say “trust us” but the public says “provide us the grounds for trust”* Charles Bosk, Forgive and Remember, 1979

39. Key issue is the public expectation of “competent” doctors • Patients expect doctors to meet their needs….they want performance (not just competence). • Doctors assert competence to merit their place in society. • The common ground is competence in action; the capacity to deliver care that keeps patients safe, benefits them and satisfies their reasonable expectations • The special task of the profession, is to be accountable for these values for the public

40. Competence; the new core of professionalism and basis for public trust • “Competence” is a multidimensional relational concept, that describes all of the distinctive acts and behaviours that serve the public in the special scope of practice of the profession • Ultimately, trust is based upon competence • Different, more grounded concept than Freidson’s idea of the “soul” of a profession • Competence can be accounted for, souls are hard to pin down

41. How does the profession think about its own competence?A shifting culture.

42. Attributional (Ballistic) Model of Competence “Once in good for life…?” ? Changing standards

43. The traditional paradigm of competency appraisal in medicine • Attributional (Ballistic) model has provided the framework of competence (education and assessment) for most of 20th Century: dominated by the idea of “once in good for life” • Concept has pervaded thinking about competence and performance • As consequence, assessment has been front-end loaded; (medical school and PG training) • Tools designed to assess “competence” not “performance” • MCQ, written tests; • direct observation, clinical oral; Concern has been for PERSONALREADINESS TO PRACTICE Not for CONFIRMATION OFQUALITY IN PRACTICE

45. Consequence of Attributional Model • Competence is seen solely as an attribute of individuals...you get, you have it, you keep it, it belongs to you… • Creates ‘narcissistic’ professional culture • Close approximation of “personal” sense of worth with ‘professional’ status

46. Alternative view; situational concept of competence* • Competence not ‘built in’ as a permanent set of attributes at entry to practice • A status earned ‘one patient at a time’ • Dependent upon interactions among ‘doctors and patients ( and families) with problems in places • Verification of competence needs process and outcome measures from practice; e.g. a careful , systematic examination of performance over time • Competence is not resident in who you are, rather in what you do, where you do it and who you do it with * A Laduca

47. Acceptable Practice Performance Time (across a practice lifetime) Maintaining Competence: The Attributional Model • Performance = knowledge, skill and judgment demonstrated during interaction with patients • Clinical assessment critical to measure performance

48. Acceptable Practice Performance Time (across a practice lifetime) Maintaining Competence: The Situational Model Educational intervention • Performance = knowledge, skill and judgment as measured during interaction with patients • Clinical assessment critical to measure performance

49. Normal trajectory of performance over time • Medicine is practiced one patient at a time • performetence depends on multiple encounters between doctors and patients with problemsin places

50. Consequence of a situational view of competence • Grounds physicians in their relationship to practice rather than their “being” the practice • Values • competence in practice rather than at entry to practice • relationships with patients, families and system ( coworkers and colleagues) • importance of patient outcomes • competence is contingent and must be reasserted over time and place • Medicine seen as learning profession; trajectory of competence is a learning curve,