Tuesday, December 21, 2010
Monday, December 20, 2010
Wednesday, December 1, 2010
Doctors .. Ganging-Up
Workplace mobbing and ganging up against someone for whatever reason is a sad reality of life. The current state of the peer review process provides a handy tool to achieve so among members of the medical profession. I read the following comment, published in the Yakima Herald Internet edition http://www.yakima-herald.com/stories/2010/11/24/11-24-10-letters-to-the-editor-online-only-edition
Regardless whether the details are accurate or not, the message is that doctors can gang up against another who can be regarded as an unwelcome addition to the staff. The reasons can be any number of possibilities, but the results can be devastating to a physician.
11/24/10 Letters to the Editor, online-only edition
Yakima Herald-Republic
Dr. Smigaj will be missed
To the editor -- I felt heartsick and despairing when I read the Nov. 11 article in your newspaper that Dr. Diana Smigaj was giving up her OB practice in Yakima. Dr. Smigaj is a wonderful and very competent OB who has delivered many babies over her 15 years of practice in Yakima. Because of her specialty, she handled many high-risk births as well as normal/regular deliveries. In addition to her clinical expertise, Dr. Smigaj is a genuine, caring, kind and determined woman who is very dedicated to her patients, to their families, and to her staff. She has assembled a clinical staff of very capable women -- nurse-midwives, nurses, physician assistant and technicians who share her mission and values of supportive and good medical care.
Many women, including myself, prefer a woman physician especially for birthing and gynecological care. This preference is nothing more or less than a personal preference.
I recruited and hired Dr. Smigaj to practice in Yakima when the board of St. Elizabeth Medical Center decided to reopen obstetric services in 1995. Most OBs in Yakima and Memorial Hospital opposed the birthing center. Even prior to her arrival in Yakima, there was resistance to Dr. Smigaj and one OB-GYN told her that he was opposed to her being hired by St. Elizabeth and she would be deeply resented if she came to Yakima this way. Dr. Smigaj came despite this warning. It was soon apparent that these warnings were indicative of things to come.
I believe the Yakima Valley benefits greatly from having Dr. Smigaj and her staff, and I feel sadness for her but also for the good folks in the Yakima Valley who need her expertise.
BARBARA HOOD
Louisville, Ky.
Regardless whether the details are accurate or not, the message is that doctors can gang up against another who can be regarded as an unwelcome addition to the staff. The reasons can be any number of possibilities, but the results can be devastating to a physician.
11/24/10 Letters to the Editor, online-only edition
Yakima Herald-Republic
Dr. Smigaj will be missed
To the editor -- I felt heartsick and despairing when I read the Nov. 11 article in your newspaper that Dr. Diana Smigaj was giving up her OB practice in Yakima. Dr. Smigaj is a wonderful and very competent OB who has delivered many babies over her 15 years of practice in Yakima. Because of her specialty, she handled many high-risk births as well as normal/regular deliveries. In addition to her clinical expertise, Dr. Smigaj is a genuine, caring, kind and determined woman who is very dedicated to her patients, to their families, and to her staff. She has assembled a clinical staff of very capable women -- nurse-midwives, nurses, physician assistant and technicians who share her mission and values of supportive and good medical care.
Many women, including myself, prefer a woman physician especially for birthing and gynecological care. This preference is nothing more or less than a personal preference.
I recruited and hired Dr. Smigaj to practice in Yakima when the board of St. Elizabeth Medical Center decided to reopen obstetric services in 1995. Most OBs in Yakima and Memorial Hospital opposed the birthing center. Even prior to her arrival in Yakima, there was resistance to Dr. Smigaj and one OB-GYN told her that he was opposed to her being hired by St. Elizabeth and she would be deeply resented if she came to Yakima this way. Dr. Smigaj came despite this warning. It was soon apparent that these warnings were indicative of things to come.
I believe the Yakima Valley benefits greatly from having Dr. Smigaj and her staff, and I feel sadness for her but also for the good folks in the Yakima Valley who need her expertise.
BARBARA HOOD
Louisville, Ky.
Friday, November 26, 2010
Physician Disciplinary Action Procedures in UK NHS - Better than USA?
Being interested in a comparison between disciplinary action procedures in the US to those in other countries, I looked into the UK NHS. It appears that there is an inclination to correct and prevent recurrence rather than to punish. Also there is a clear attempt to implement due process. I do not know, in reality, how that works and whether the rules can be exploited as much as in the US for bad-faith purposes (sham peer reviews). Here is the link:
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/Browsable/DH_5279462
Read what it says...
Managing the risk to patients
4. When serious concerns are raised about a practitioner, the employer must urgently consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the practitioner from the workplace. Where there are concerns about a doctor or dentist in training, the postgraduate dean should be involved as soon as possible.
5. Exclusion of clinical staff from the workplace is a temporary expedient. Under this framework, exclusion is a precautionary measure and not a disciplinary sanction. Exclusion from work ("suspension") should be reserved for only the most exceptional circumstances.
6. The purpose of exclusion is: to protect the interests of patients or other staff; and/orto assist the investigative process when there is a clear risk that the practitioner's presence would impede the gathering of evidence.It is imperative that exclusion from work is not misused or seen as the only course of action that could be taken. The degree of action must depend on the nature and seriousness on the concerns and on the need to protect patients, the practitioner concerned and/or their colleagues.
7. Alternative ways to manage risks, avoiding exclusion, include: Medical or clinical director supervision of normal contractual clinical duties;Restricting the practitioner to certain forms of clinical duties;Restricting activities to administrative, research/audit, teaching and other educational duties. By mutual agreement the latter might include some formal retraining or re-skilling.Sick leave for the investigation of specific health problems.8. In cases relating to the capability of a practitioner, consideration should be given to whether an action plan to resolve the problem can be agreed with the practitioner. Advice on the practicality of this approach should be sought from the National Clinical Assessment Authority (NCAA). If the nature of the problem and a workable remedy cannot be determined in this way, the case manager should seek to agree with the practitioner to refer the case to the NCAA, which can assess the problem in more depth and give advice on any action necessary. The NCAA can offer immediate telephone advice to case managers considering restriction of practise or exclusion and, whether or not the practitioner is excluded, provide an analysis of the situation and offer advice to the case manager.
Details can be found in the website "Maintaining high professional standards in the modern NHS"
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/Browsable/DH_5279462
Read what it says...
Managing the risk to patients
4. When serious concerns are raised about a practitioner, the employer must urgently consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the practitioner from the workplace. Where there are concerns about a doctor or dentist in training, the postgraduate dean should be involved as soon as possible.
5. Exclusion of clinical staff from the workplace is a temporary expedient. Under this framework, exclusion is a precautionary measure and not a disciplinary sanction. Exclusion from work ("suspension") should be reserved for only the most exceptional circumstances.
6. The purpose of exclusion is: to protect the interests of patients or other staff; and/orto assist the investigative process when there is a clear risk that the practitioner's presence would impede the gathering of evidence.It is imperative that exclusion from work is not misused or seen as the only course of action that could be taken. The degree of action must depend on the nature and seriousness on the concerns and on the need to protect patients, the practitioner concerned and/or their colleagues.
7. Alternative ways to manage risks, avoiding exclusion, include: Medical or clinical director supervision of normal contractual clinical duties;Restricting the practitioner to certain forms of clinical duties;Restricting activities to administrative, research/audit, teaching and other educational duties. By mutual agreement the latter might include some formal retraining or re-skilling.Sick leave for the investigation of specific health problems.8. In cases relating to the capability of a practitioner, consideration should be given to whether an action plan to resolve the problem can be agreed with the practitioner. Advice on the practicality of this approach should be sought from the National Clinical Assessment Authority (NCAA). If the nature of the problem and a workable remedy cannot be determined in this way, the case manager should seek to agree with the practitioner to refer the case to the NCAA, which can assess the problem in more depth and give advice on any action necessary. The NCAA can offer immediate telephone advice to case managers considering restriction of practise or exclusion and, whether or not the practitioner is excluded, provide an analysis of the situation and offer advice to the case manager.
Details can be found in the website "Maintaining high professional standards in the modern NHS"
Saturday, November 13, 2010
Does The Law Necessarily Protect Good Medicine?
I believe that the following paragraphs are worth reading and pondering. They are from an article "How to Protect Physician Whistleblower-Patient Advocates - From Retaliation to Benefit Patients" - October 2007
by Gil N. Mileikowsky, MD, Encino, CA, and Bartholomew Lee , Spiegel Liao & Kagay, San Francisco, CA. The link is: http://www.allianceforpatientsafety.org/protect.php
The Law Today Favors Bad Medicine:
Once a hospital hearing to test a summary suspension commences, the administrative process controls the suspended physician. Due to the "doctrine of exhaustion of administrative remedies" no court will intervene to prevent administrative dissemination of the defamation of the report of the summary suspension, even though there has been no adverse finding or adjudication. "Exhaustion of administrative remedies" usually means exhaustion of physician resources, in litigation and its antecedents, especially inasmuch as the physician cannot (on interim suspension) practice medicine.
Furthermore, due to the abuse by hospitals of that doctrine, hospitals can prolong that administrative process with many delays, e.g., by an ostensibly favorable ruling of the hospital's appeal board granting yet another, new "hearing" to the still suspended physician. That is a most effective strategy, at worst malicious prosecution, at best "good intentions gone awry," to exhaust the physician as an adversary emotionally, financially and physically. Hence, the hospital wins by attrition before any litigation is even possible. In the end, the physician's "exhaustion of administrative remedies" may be futile. It all too often ends up with a final blow by the governing board of the hospital (even if members of that board may believe that this physician is innocent). This is so, because a ruling by the governing board in favor of the physician, would open the door to claims for monetary damages for the physician against the hospital. The board in its perceived fiduciary responsibility will wish to prevent such a financial loss.
The hospital simply must bury its mistake, and take advantage of the reluctance of judges to substitute judgment for medical professionals in staff matters.
Moreover, a physician who can get to court generally at most wins a remand to the administering hospital, for yet another round of hearings.
When it is understood that hospitals' attorneys drafted the amended federal Health Care Quality Improvement Act (HCQIA 1989), the insertion of a quasi-judicial immunity provision can also be explained. The effect if not the object was not so much protection of physician participants in good faith peer review; rather it was the perhaps unintended consequence of protection of hospitals that sponsor bad faith peer review. Hence, only very few injured physicians in the last 20 years have been able to get past the twin peaks of judicial deference to medical prosecutors and administrators and immunity for the complicit as well as the innocent.
As if this were not enough, the HCQIA also provides that a peer review body's failure to meet the conditions described in the law does not constitute failure to meet the applicable standards. In other words, failure to comply with this particular law is not a violation of this particular law. Such a caveat sacrifices the health care quality improvement spirit of the law by gutting the letter of the law. In effect, the hospitals' lawyers' lobbying has loaded the dice. The public cannot expect this process to be either fair or reasonable. An objective observer could join advocates in concluding that at this time, the "peer review" disciplinary hearing process is rigged to a point way beyond any "stacked deck" of cards. Even without malicious intent, physicians from the same hospital are frequently too close to the personalities to avoid bias one way or the other (unlike, for example, a jury of one's peers in court, who are strangers to the parties). Hospital administrators face economic incentives to maximize income, but not to minimize complications.
Ironically, bad physicians are rarely subject to such malicious prosecution. This is so because they are often significant income providers to the hospital and thus enjoy the protection of a hospital more concerned with revenues than patient well-being. This was the case in Redding, California for two heart doctors who did hundreds of sometimes fatal heart procedures, utterly unneeded, and full of risk. All monitoring and inspection by several agencies failed to detect this enormity. When hospital managements, closest to the problems, are compensated only in proportion to revenue growth, patient safety suffers. Often bad physicians, without the leverage of big revenue, simply agree to leave the hospital, provided the hospital does not report them to the state medical board, thereby minimizing its own exposures. They thus evade the "radar screen" of mandatory reporting.
The public is not protected. The reporting system tells of summary suspensions of even outstanding physicians without adjudications, but cannot report cover-ups.
by Gil N. Mileikowsky, MD, Encino, CA, and Bartholomew Lee , Spiegel Liao & Kagay, San Francisco, CA. The link is: http://www.allianceforpatientsafety.org/protect.php
The Law Today Favors Bad Medicine:
Once a hospital hearing to test a summary suspension commences, the administrative process controls the suspended physician. Due to the "doctrine of exhaustion of administrative remedies" no court will intervene to prevent administrative dissemination of the defamation of the report of the summary suspension, even though there has been no adverse finding or adjudication. "Exhaustion of administrative remedies" usually means exhaustion of physician resources, in litigation and its antecedents, especially inasmuch as the physician cannot (on interim suspension) practice medicine.
Furthermore, due to the abuse by hospitals of that doctrine, hospitals can prolong that administrative process with many delays, e.g., by an ostensibly favorable ruling of the hospital's appeal board granting yet another, new "hearing" to the still suspended physician. That is a most effective strategy, at worst malicious prosecution, at best "good intentions gone awry," to exhaust the physician as an adversary emotionally, financially and physically. Hence, the hospital wins by attrition before any litigation is even possible. In the end, the physician's "exhaustion of administrative remedies" may be futile. It all too often ends up with a final blow by the governing board of the hospital (even if members of that board may believe that this physician is innocent). This is so, because a ruling by the governing board in favor of the physician, would open the door to claims for monetary damages for the physician against the hospital. The board in its perceived fiduciary responsibility will wish to prevent such a financial loss.
The hospital simply must bury its mistake, and take advantage of the reluctance of judges to substitute judgment for medical professionals in staff matters.
Moreover, a physician who can get to court generally at most wins a remand to the administering hospital, for yet another round of hearings.
When it is understood that hospitals' attorneys drafted the amended federal Health Care Quality Improvement Act (HCQIA 1989), the insertion of a quasi-judicial immunity provision can also be explained. The effect if not the object was not so much protection of physician participants in good faith peer review; rather it was the perhaps unintended consequence of protection of hospitals that sponsor bad faith peer review. Hence, only very few injured physicians in the last 20 years have been able to get past the twin peaks of judicial deference to medical prosecutors and administrators and immunity for the complicit as well as the innocent.
As if this were not enough, the HCQIA also provides that a peer review body's failure to meet the conditions described in the law does not constitute failure to meet the applicable standards. In other words, failure to comply with this particular law is not a violation of this particular law. Such a caveat sacrifices the health care quality improvement spirit of the law by gutting the letter of the law. In effect, the hospitals' lawyers' lobbying has loaded the dice. The public cannot expect this process to be either fair or reasonable. An objective observer could join advocates in concluding that at this time, the "peer review" disciplinary hearing process is rigged to a point way beyond any "stacked deck" of cards. Even without malicious intent, physicians from the same hospital are frequently too close to the personalities to avoid bias one way or the other (unlike, for example, a jury of one's peers in court, who are strangers to the parties). Hospital administrators face economic incentives to maximize income, but not to minimize complications.
Ironically, bad physicians are rarely subject to such malicious prosecution. This is so because they are often significant income providers to the hospital and thus enjoy the protection of a hospital more concerned with revenues than patient well-being. This was the case in Redding, California for two heart doctors who did hundreds of sometimes fatal heart procedures, utterly unneeded, and full of risk. All monitoring and inspection by several agencies failed to detect this enormity. When hospital managements, closest to the problems, are compensated only in proportion to revenue growth, patient safety suffers. Often bad physicians, without the leverage of big revenue, simply agree to leave the hospital, provided the hospital does not report them to the state medical board, thereby minimizing its own exposures. They thus evade the "radar screen" of mandatory reporting.
The public is not protected. The reporting system tells of summary suspensions of even outstanding physicians without adjudications, but cannot report cover-ups.
Friday, November 12, 2010
Physicians and Surgeons: You're Guilty Until Proven Innocent
The title may sound an exaggeration, or an attempt to attract the attention. Unfortunately, it is 100% accurate, if you see how the consequences of being guilty will be suffered from early on. Let's say you are an excellent doctor. Let's say your patients love you. Let's say you have great bedside manners. Let's say you keep yourself well-informed of new medical literature. Let's say you treat your patients as if they were your own family. Let's say your results are better than your peers. Then something happens. Somehow, a peer review is initiated against you. While you ponder what's happening, and you start putting a lot of hours and effort to respond to the allegations, the powers decide that, allegedly because of "concerns", and to protect the patients from you, you are placed on suspension. Believe it or not, you will, from now on, suffer the consequences as if you were actually "guilty", even though it is all unproven. Here is how it works. The hospital has to report to the National Practitioner Data Band (NPDB) that you are suspended, and such a report should be filed within thirty days (in California, only 15 days and electronic filing is being implemented). Hold on, what are we reporting here? The doctor has not been proven guilty of anything. It gets worse, and still the physician is not proven to deserve any restriction of their practice. An investigation by the hospital may be initiated, and may take for ever, while the physician is unable to earn a living, being on suspension. The doctor cannot work elsewhere either, because the NPDB report effectively made the physician not employable. Bad .. eh? It gets even worse. There is no high-standard "due process". The entire process is allowed to be driven and directed by the very people who are being hostile to the doctor. The peer review process may very well end with a verdict that revokes the doctor's privileges in that hospital, which is the death sentence to the physician's career. Throughout the process, the doctor has been enduring the consequences of being guilty (losing ability to practice medicine, having a negative report to the NPDB, being unable to find a job, being labeled as incompetent) before any fair process has ever started. For many physicians, the process will never be fair, since the laws are extremely biased against the physicians, and will be completed with the definitive destruction of the career. Even though the title says "You're guilty until proven innocent", it is quite possible that you'll never be able to clear your name with the current state of affairs. If you can afford litigation, that is probably your only chance to defend your reputation.
Those who aspire to be physicians need to know those very true facts about practicing medicine in the USA. You will be under the mercy of others. You may be lucky to practice in a good environment. Or, you may be not ......
Those who aspire to be physicians need to know those very true facts about practicing medicine in the USA. You will be under the mercy of others. You may be lucky to practice in a good environment. Or, you may be not ......
Thursday, November 11, 2010
Stressed out doctor will close her clinic
Source: http://www.yakima-herald.com/stories/2010/11/10/stressed-out-by-legal-fight-doctor-will-close-her-clinic
From the Yakima Herald-Republic Online News.
Posted on Wednesday, November 10, 2010
Stressed out by legal fight, doctor will close her clinic
Yakima Herald-Republic
YAKIMA -- Citing exhaustion from a two-year legal battle that she launched against Yakima Valley Memorial Hospital, obstetrician Dr. Diana Smigaj said she will close her practice -- Cascade Women's Healthcare Associates in Yakima -- by the end of the year.
Smigaj, who accuses the hospital of trying to drive her out of business, lost the case earlier this fall on summary judgment in Yakima County Superior Court.
"I've been under incredible pressure and stress," from Memorial, said 62-year-old Smigaj. "I'm getting to a point where I feel so threatened and so much of a target that I can't practice."
To read the full article, go to:
http://www.yakima-herald.com/stories/2010/11/10/stressed-out-by-legal-fight-doctor-will-close-her-clinic
At the end of the article,
"Smigaj said she's spent two years trying to clear her name.
"With the way the law is interpreted, a medical staff member who's being targeted does not have the legal rights of a common criminal to due process," she said.Linneweh said the hospital is seeking to recover its legal fees from Smigaj, which he estimated at $500,000."
This is sad!
From the Yakima Herald-Republic Online News.
Posted on Wednesday, November 10, 2010
Stressed out by legal fight, doctor will close her clinic
Yakima Herald-Republic
YAKIMA -- Citing exhaustion from a two-year legal battle that she launched against Yakima Valley Memorial Hospital, obstetrician Dr. Diana Smigaj said she will close her practice -- Cascade Women's Healthcare Associates in Yakima -- by the end of the year.
Smigaj, who accuses the hospital of trying to drive her out of business, lost the case earlier this fall on summary judgment in Yakima County Superior Court.
"I've been under incredible pressure and stress," from Memorial, said 62-year-old Smigaj. "I'm getting to a point where I feel so threatened and so much of a target that I can't practice."
To read the full article, go to:
http://www.yakima-herald.com/stories/2010/11/10/stressed-out-by-legal-fight-doctor-will-close-her-clinic
At the end of the article,
"Smigaj said she's spent two years trying to clear her name.
"With the way the law is interpreted, a medical staff member who's being targeted does not have the legal rights of a common criminal to due process," she said.Linneweh said the hospital is seeking to recover its legal fees from Smigaj, which he estimated at $500,000."
This is sad!
Tuesday, November 9, 2010
California Dreaming - Senate Bill 700 (SB 700) - Peer Reviews
With great interest, I read the new provisions in California law. The article that is the subject of today's discussion is an excellent article that can be reached at the following link:
The article of interest is a publication of Davis Wright Tremaine LLP. They state that their purpose in publishing that advisory is to inform their clients and friends of recent legal developments. They also state that it is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.
On Sept. 29, 2010, California Gov. Arnold Schwarzenegger signed Senate Bill 700 (SB 700) into state law. The amendments and new provisions will go into effect on Jan. 1, 2011. According to a Senate analysis of SB 700, the bill was needed to address various criticisms of the peer review process.
Criticisms of the peer review process:
(1) A perceived reluctance among physicians to serve on peer review committees due to the risk of involvement in related future litigation
(2) A rising concern about “sham peer review” (defined as the use of the peer review system to discredit, harass, discipline, or otherwise negatively affect a physician's ability to practice medicine or exercise professional judgment for a nonmedical or patient safety related reason).
(3) The “over legalization of the process, lack of transparency in the system, and [the] burdensome human and financial toll” on both the hospital and the physician. The article noticed that, SB 700's additional requirements appear more likely to increase the over-legalization and burdensome nature of peer review than to alleviate its perceived problems.
The article reported, "B&P Code Sections 800 and 805(f) also allow a physician to supplement the 805 Report segment of the physician’s Central File with “additional exculpatory or explanatory statements” and add any finding of bad faith by a court regarding a peer review proceeding that resulted in an 805 Report. The licensee has the burden of notifying his or her licensing board about such a bad-faith finding."
My Comment: I believe that this will not help the majority of physicians while asserting the "guilty till proven otherwise" attitude. We know that only a minority of sham peer review cases can be proven, considering the required insurmountable burden. This reporting provision does not remedy the situation for the vast majority of cases.
Comment on the 805 Report requirements:
An 805 must be submitted after any of the following events occurs for a medical disciplinary cause or reason:
- “Denial or rejection of an application for membership or privileges.” What if the decision to deny or reject an application was improper? Are there any safeguards before defaming the physician?
- “Summary suspension of a licensee’s membership, privileges, or employment that remains in effect for more than 14 days”. Why so quick to destroy? What if the suspension was improper? How to prevent bad faith actions from turning into a total disaster?
“SB 700 provides, in newly enacted B&P Code Section 805.01, for an additional report, distinct from the 805 Report (the 805.01 Report), which must be made within 15 days after a peer review body—e.g., the Medical Executive Committee (MEC)—makes a final decision or recommendation—not 15 days after a licensee is informed of the proposed action, or after the decision becomes effective—regarding a disciplinary action (as specified in Section 805(b)) against a licensee based upon a formal investigation. In this context, the term “formal investigation” is defined to mean “an investigation performed by a peer review body based on an allegation that any of the acts listed in [Section 805.01] have occurred.” Why should an adversarial recommendation be reported while the physician did not have a chance yet to defend himself against a process that does not provide the constitutional right of “due process”? And why so quick to destroy the physician? Is such a physician, who is guilty and before being given a chance to prove innocent, considered an enemy of the state?
The article comments: “One of the most basic questions, which inevitably will spark lively debate, is when a "final decision or recommendation of a peer review body" has occurred to trigger the new 805.01 reporting requirement. For example, if the MEC adopts a recommendation to terminate a practitioner's privileges, is that a reportable event, or does it not become a "final recommendation ... of the peer review body" (which is defined by Section 805 as "the medical or professional staff") until it is ripe for consideration and action by the governing body? That might be after the physician has either waived his hearing rights or pursued them unsuccessfully.”
Practicing medicine while under the threat of the current hostile environment should make one wonder, is it really worth it? Something is not right here.
Monday, November 8, 2010
Dear Patient Series (2) - You May Help Your Doctor Survive
Dear Patient (USA):
In some locations, there is a fierce competition among surgeons and physicians. If you want to support your physician or surgeon who you felt gave you exceptional treatment, or whose services you believe are valuable to the community, do not hesitate to write a letter of support to the hospital's CEO, Director of Quality Assurance, and Chief of Staff. Make sure that you send a copy to your doctor for her/his records. You never know, that may help keeping the doctor in practice to service you and your community. This is your chance to "vote" for those whom you want to stay in practice. Just a thought!
In some locations, there is a fierce competition among surgeons and physicians. If you want to support your physician or surgeon who you felt gave you exceptional treatment, or whose services you believe are valuable to the community, do not hesitate to write a letter of support to the hospital's CEO, Director of Quality Assurance, and Chief of Staff. Make sure that you send a copy to your doctor for her/his records. You never know, that may help keeping the doctor in practice to service you and your community. This is your chance to "vote" for those whom you want to stay in practice. Just a thought!
Saturday, November 6, 2010
Some Thoughts Re: Essentials of a Good Peer Review Process
This posting will only be appreciated by those who believe in the necessity of a good-faith and healthy peer review process in order to improve the medical care of the patients and the community. That is what every conscientious physician supports. Physicians and surgeons should be more assertive in seeking constructive peer review practices in their hospitals. Before engaging with a hospital, physicians ideally need to know how the peer review process works. Asking for a copy of the Bylaws early on may give a hint. I wish there were an on-line resource that identifies hospitals that have an on-going healthy educational peer review processes . One should probably avoid hospitals that do not employ the peer review process under any circumstance other than punishing or eliminating a physician.
In my opinion, a good peer review process should be:
1. On-going and continuous.
2. Applying the same level of chart reviews and scrutiny to all physicians in an institution, fairly. Initiating chart reviews against only one physicians based on some triggering statistical analysis is discriminatory.
3. Used to educate, and to prevent recurrence of problems
4. Transparent and involving all clinicians/providers. All providers should be both active participants of reviews as well as being reviewed. Every surgeon's problem cases should be reviewed. Every surgeon/physician should be treated with the same level of collegiality. The goal should be to improve the care of patients by all providers.
If need to, for cases where the staff may not reach a conclusion in a particular case, it may be a great idea to selectively use the services of a reputable external review service, or approach the nearest University Medical Center to see if they have staff that is willing to perform an external review. Such a service should be used primarily for education, rather than to make a case against an individual provider.
Hospitals whose only application of the peer review process is to restrict or revoke the privileges of select physicians should be identified and be known to the public. Physicians should avoid seeking privileges in, practicing in, or being employed by, those hospitals. Those are not quality-seeking institutions, but, rather, physician-victimizing and punishment systems that could be unfair and probably should be avoided.
In my opinion, a good peer review process should be:
1. On-going and continuous.
2. Applying the same level of chart reviews and scrutiny to all physicians in an institution, fairly. Initiating chart reviews against only one physicians based on some triggering statistical analysis is discriminatory.
3. Used to educate, and to prevent recurrence of problems
4. Transparent and involving all clinicians/providers. All providers should be both active participants of reviews as well as being reviewed. Every surgeon's problem cases should be reviewed. Every surgeon/physician should be treated with the same level of collegiality. The goal should be to improve the care of patients by all providers.
If need to, for cases where the staff may not reach a conclusion in a particular case, it may be a great idea to selectively use the services of a reputable external review service, or approach the nearest University Medical Center to see if they have staff that is willing to perform an external review. Such a service should be used primarily for education, rather than to make a case against an individual provider.
Hospitals whose only application of the peer review process is to restrict or revoke the privileges of select physicians should be identified and be known to the public. Physicians should avoid seeking privileges in, practicing in, or being employed by, those hospitals. Those are not quality-seeking institutions, but, rather, physician-victimizing and punishment systems that could be unfair and probably should be avoided.
Wednesday, November 3, 2010
The American Medical Association and Peer Reviews (Part 2)
The full document that is the topic of this posting can be opened by clicking the following link:
www.ama-assn.org/ama1/pub/upload/mm/471/annotatedb.doc
I believe that the following recommendations from the American Medical Association (AMA) seem to be in the right direction:
------------------------------------
Here is the part of the report that pertains to the legal protections for the peer review process:
------------------------------------
recommended for referral
(24) BOARD OF TRUSTEES REPORT 18 - LEGAL PROTECTIONS FOR MEDICAL PEER REVIEW
RECOMMENDATION:
Mr. Speaker, your Reference Committee recommends that Board of Trustees Report 18 be referred.
Board of Trustees Report 18 recommends that our American Medical Association adopt the following definition of peer review including the definitions of the structural elements that support medical peer review process and the remainder of this report be filed.
Peer review is the task of self-monitoring and maintaining the administration of patient safety and quality of care, consistent with optimal standards of practice. It is the mechanism by which the medical profession fulfills its obligation to ensure that its members are able to provide safe and effective care, whereas credentialing is the process to verify practitioner qualifications at the time of initial appointment or reappointment to a health care institution. Effective peer review is an essential hallmark of the medical profession; it is the practice of medicine. Elements of medical care, which describe the knowledge, skills, attitudes, and educational experiences of physicians and provide the foundation of physician activities, are subject to peer review and its protections. Those elements include, but are not limited to the following: patient care, medical knowledge, practice-based learning and improvement, interpersonal and communication skills, professionalism, and systems-based practice.
Good faith peer review is the mechanism by which the medical profession fulfills its obligation to ensure that its members are able to provide safe and effective care; effective peer review is an essential hallmark of the medical profession. The responsibility assigned to and scope of peer review is the practice of medicine. The process of peer review is conducted by physicians who are within the same geographic area or jurisdiction and medical specialty of the physician subject to review to assure that all physicians consistently maintain optimal standards of competency to practice medicine. Physicians outside of the organization that is convening peer review may participate in that organization’s peer review of a physician if the reviewing physician is within the same geographic area or jurisdiction and medical specialty as the physician who is the subject of peer review.
Medical Peer Review Organizations. Any panel, committee, or organization that is composed of physicians or formed from a medical staff, which engages in or utilizes peer reviews concerning physician well-being (eg, fitness to practice medicine) or the care and treatment of patients for the purposes of self-monitoring and maintaining the administration of patient safety and quality of care consistent with optimal standards of practice is a medical peer review organization. The responsibility of a medical peer review organization is to assure (1) that all physicians consistently maintain optimal standards of competency to practice medicine and (2) the quality, safety, and appropriateness of patient care services. The medical peer review committee’s obligations include review of allegations of infirmity (eg, fitness to practice medicine), negligent treatment, and intentional misconduct. Peer review protections and privilege should extend to investigation and subsequent correction of negligent treatment and intentional misconduct.
Proceedings. Proceedings include all of the activities and information and records of a peer review committee. Proceedings are not subject to discovery and no person who was in attendance at a meeting of a peer review organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such organization or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of a peer review organization, nor should any person who testifies before a peer review organization or who is a member of a peer review organization be prevented from testifying as to matters within his/her knowledge; but such witness cannot be asked about his/her testimony before a peer review organization or about opinions formed by him/her as a result of the peer review organization hearings.
Peer Review Activity. Peer review activity means the procedure by which peer review committees or quality assessment and assurance committees monitor, evaluate, and recommend actions to improve and assure the delivery and quality of services within the committees' respective facilities, agencies, and professions, including recommendations, consideration of recommendations, actions with regard to recommendations, and implementation of actions.
Peer Review Records. Peer review records mean all complaint files, investigation files, reports, and other investigative information relating to the monitoring, evaluation, and recommendation of actions to improve the delivery and quality of health care services, licensee discipline, or professional competence in the possession of a peer review committee or an employee of a peer review committee.
Privilege. The proceedings, records, findings, and recommendations of a peer review organization are not subject to discovery or use. Information gathered by a committee is protected. Purely factual information, such as the time and dates of meetings and identities of any peer review committee attendees is protected. Peer review information otherwise discoverable from “original sources” cannot be obtained from the peer review committee itself. In medical liability actions, the privilege protects reviews of the defendant physician’s specific treatment of the plaintiff and extends to reviews of treatment the physician has provided to patients other than the plaintiff.
Confidentiality. Peer review records and deliberations are confidential and may not be disclosed outside of the judicial process.
Peer Review Immunity. To encourage physician participation and ensure effective peer review, entities and participants engaged in peer review activities should be immune from civil damages, injunctive or equitable relief, and criminal liability.
Your Reference Committee heard complimentary testimony on our Board’s work to establish a thorough definition of peer review in this report. Your Reference Committee also heard significant testimony asking our AMA to continue investigating several peer review issues before the report is approved. The general consensus of the testimony is that peer review should focus on quality improvement and patient safety rather than physician discipline. Specific recommendations include that: 1) the definition does not extend to physician wellness programs; 2) the report should state that a physician’s participation in peer review should not appear in a credentialing file; 3) physicians should enjoy strong due process in peer review proceedings, 4) the negative unintended consequences of a peer review system should be mitigated, including concerns that physicians can unfairly be targeted through peer review processes for reasons not related to quality, and (5) creating definitions for such terms as “unintended consequences,” “communication skills,” “professionalism,” and “system-based practice.” Therefore, your Reference Committee recommends referral of Board of Trustees Report 18.
www.ama-assn.org/ama1/pub/upload/mm/471/annotatedb.doc
I believe that the following recommendations from the American Medical Association (AMA) seem to be in the right direction:
"The general consensus of the testimony is that peer review should focus on quality improvement and patient safety rather than physician discipline. Specific recommendations include that: 1) the definition does not extend to physician wellness programs; 2) the report should state that a physician’s participation in peer review should not appear in a credentialing file; 3) physicians should enjoy strong due process in peer review proceedings, 4) the negative unintended consequences of a peer review system should be mitigated, including concerns that physicians can unfairly be targeted through peer review processes for reasons not related to quality, and (5) creating definitions for such terms as “unintended consequences,” “communication skills,” “professionalism,” and “system-based practice.” Therefore, your Reference Committee recommends referral of Board of Trustees Report 18.
------------------------------------
Here is the part of the report that pertains to the legal protections for the peer review process:
------------------------------------
DISCLAIMER
The following is a preliminary report of actions taken by the House of Delegates at its 2008 Annual Meeting and should not be considered final. Only the Official Proceedings of the House of Delegates reflect official policy of the Association.
AMERICAN MEDICAL ASSOCIATION HOUSE OF DELEGATES (A-08)
Report of Reference Committee B
Craig W. Anderson, MD, Chair
In keeping with Resolution 601 (A-96), the Reference Committee recommends the following consent calendar for acceptance:
<<<<<<<<<<< SNIPPED >>>>>>>>>>>>>>>>>>
recommended for referral
24. Board of Trustees Report 18 – Legal Protections for Medical Peer Review
<<<<<<<<<<<<<<>>>>>>>>>>>>>>>>>(24) BOARD OF TRUSTEES REPORT 18 - LEGAL PROTECTIONS FOR MEDICAL PEER REVIEW
RECOMMENDATION:
Mr. Speaker, your Reference Committee recommends that Board of Trustees Report 18 be referred.
HOD ACTION: Board of Trustees Report 18 referred.
Board of Trustees Report 18 recommends that our American Medical Association adopt the following definition of peer review including the definitions of the structural elements that support medical peer review process and the remainder of this report be filed.
Peer review is the task of self-monitoring and maintaining the administration of patient safety and quality of care, consistent with optimal standards of practice. It is the mechanism by which the medical profession fulfills its obligation to ensure that its members are able to provide safe and effective care, whereas credentialing is the process to verify practitioner qualifications at the time of initial appointment or reappointment to a health care institution. Effective peer review is an essential hallmark of the medical profession; it is the practice of medicine. Elements of medical care, which describe the knowledge, skills, attitudes, and educational experiences of physicians and provide the foundation of physician activities, are subject to peer review and its protections. Those elements include, but are not limited to the following: patient care, medical knowledge, practice-based learning and improvement, interpersonal and communication skills, professionalism, and systems-based practice.
Good faith peer review is the mechanism by which the medical profession fulfills its obligation to ensure that its members are able to provide safe and effective care; effective peer review is an essential hallmark of the medical profession. The responsibility assigned to and scope of peer review is the practice of medicine. The process of peer review is conducted by physicians who are within the same geographic area or jurisdiction and medical specialty of the physician subject to review to assure that all physicians consistently maintain optimal standards of competency to practice medicine. Physicians outside of the organization that is convening peer review may participate in that organization’s peer review of a physician if the reviewing physician is within the same geographic area or jurisdiction and medical specialty as the physician who is the subject of peer review.
Medical Peer Review Organizations. Any panel, committee, or organization that is composed of physicians or formed from a medical staff, which engages in or utilizes peer reviews concerning physician well-being (eg, fitness to practice medicine) or the care and treatment of patients for the purposes of self-monitoring and maintaining the administration of patient safety and quality of care consistent with optimal standards of practice is a medical peer review organization. The responsibility of a medical peer review organization is to assure (1) that all physicians consistently maintain optimal standards of competency to practice medicine and (2) the quality, safety, and appropriateness of patient care services. The medical peer review committee’s obligations include review of allegations of infirmity (eg, fitness to practice medicine), negligent treatment, and intentional misconduct. Peer review protections and privilege should extend to investigation and subsequent correction of negligent treatment and intentional misconduct.
Proceedings. Proceedings include all of the activities and information and records of a peer review committee. Proceedings are not subject to discovery and no person who was in attendance at a meeting of a peer review organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such organization or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of a peer review organization, nor should any person who testifies before a peer review organization or who is a member of a peer review organization be prevented from testifying as to matters within his/her knowledge; but such witness cannot be asked about his/her testimony before a peer review organization or about opinions formed by him/her as a result of the peer review organization hearings.
Peer Review Activity. Peer review activity means the procedure by which peer review committees or quality assessment and assurance committees monitor, evaluate, and recommend actions to improve and assure the delivery and quality of services within the committees' respective facilities, agencies, and professions, including recommendations, consideration of recommendations, actions with regard to recommendations, and implementation of actions.
Peer Review Records. Peer review records mean all complaint files, investigation files, reports, and other investigative information relating to the monitoring, evaluation, and recommendation of actions to improve the delivery and quality of health care services, licensee discipline, or professional competence in the possession of a peer review committee or an employee of a peer review committee.
Privilege. The proceedings, records, findings, and recommendations of a peer review organization are not subject to discovery or use. Information gathered by a committee is protected. Purely factual information, such as the time and dates of meetings and identities of any peer review committee attendees is protected. Peer review information otherwise discoverable from “original sources” cannot be obtained from the peer review committee itself. In medical liability actions, the privilege protects reviews of the defendant physician’s specific treatment of the plaintiff and extends to reviews of treatment the physician has provided to patients other than the plaintiff.
Confidentiality. Peer review records and deliberations are confidential and may not be disclosed outside of the judicial process.
Peer Review Immunity. To encourage physician participation and ensure effective peer review, entities and participants engaged in peer review activities should be immune from civil damages, injunctive or equitable relief, and criminal liability.
Your Reference Committee heard complimentary testimony on our Board’s work to establish a thorough definition of peer review in this report. Your Reference Committee also heard significant testimony asking our AMA to continue investigating several peer review issues before the report is approved. The general consensus of the testimony is that peer review should focus on quality improvement and patient safety rather than physician discipline. Specific recommendations include that: 1) the definition does not extend to physician wellness programs; 2) the report should state that a physician’s participation in peer review should not appear in a credentialing file; 3) physicians should enjoy strong due process in peer review proceedings, 4) the negative unintended consequences of a peer review system should be mitigated, including concerns that physicians can unfairly be targeted through peer review processes for reasons not related to quality, and (5) creating definitions for such terms as “unintended consequences,” “communication skills,” “professionalism,” and “system-based practice.” Therefore, your Reference Committee recommends referral of Board of Trustees Report 18.
Sunday, October 31, 2010
How To Destroy A Physician - Part 4 - Ulterior Motives
Even though peer review processes are essential for quality care, the current system in the US is open for exploitation and corruption. As promised, here are some scenarios when a bad-faith peer review may be initiated, in no special order.
These are just examples. You never know where the smearing may come from. Remember, the peer review process can be initiated by a hearsay evidence. The system is so badly open to exploitation, that the above reasons may start a process that may end a physician's career in the USA.
- Competition with other established staff members.
- Competition against the hospital itself, since this may be easier than trying to enforce a no-compete clause.
- Professional jealousy (yes, it does exist).
- The physician may be a perfectionist, too thorough, who likes that?
- A whistle blower.
- A physician whose opinions are not conforming with the culture of the establishment in the hospital.
- A surgeon who is not liked by some OR staff who favor another surgeon
- A physician who is not liked by some connected nurses
These are just examples. You never know where the smearing may come from. Remember, the peer review process can be initiated by a hearsay evidence. The system is so badly open to exploitation, that the above reasons may start a process that may end a physician's career in the USA.
The American Medical Association (AMA) and Peer Reviews (Part 1)
I am commenting on a 2007 report of the Board of Trustees of the American Medical Association. The document itself can be pulled by clicking the following link. I have also posted it at the end of the discussion for immediate reference.
http://www.ama-assn.org/ama1/pub/upload/mm/471/bot24.doc
According to the document, during the 2007 Annual Meeting, the American Medical Association (AMA) House of Delegates adopted an amendment that directed the Board of Trustees to report on abuses of the peer review process. The resolution asked that the report consider situations in which medical staff peer review has been employed for reasons other than maintaining and improving public health, such as to be rid of a competitor or to sanction a physician who disagrees in good faith with hospital policies. The document that is discussed here was the response to that request. I will post selected statements from the report/document, and will then follow with a comment.
Statement: "While charges of peer review abuse are made with some frequency, they are difficult to prove, and there have been few confirmed cases of such abuse. Estimates of the occurrence of abuse are speculative."
Comment: It is so important to realize this fact, and I cannot state it any better than it is stated in the report. My comment is that, since it is so difficult to prove abuse of the peer review process, then one cannot make any serious or meaningful estimates as to the frequency of such abuses. In other words, any estimates whether abuses are rare or common are purely speculative. And since abusing the peer review process has extremely serious and destructive consequences, it is detrimental to the medical profession to use the argument that abuses are rare in order to keep the status quo. In my opinion, it is important to make the peer review process more efficient and well balanced, and inherently abuse-proof, rather than accepting it as it is now, and arguing that abuses are rare.
Statement: "A sanction by a peer review body can be a devastating blow to a physician, emotionally, financially, and professionally."
Comment: Again, I cannot state that any better than the AMA. To put things in perspective, the Mission of the American Medical Association is "To promote the art and science of medicine and the betterment of public health." The stated AMA Vision is: "To be an essential part of the professional life of every physician." I would expect that an AMA with such a "Vision" must have strong positions and proposals to prevent abuses and guard against sham peer reviews, since the devastating effects have clearly been acknowledged.
Statement: "The Massachusetts Medical Society surveyed Massachusetts physicians in late 2006 to ascertain their experiences with and attitude toward peer review. While 88% of the respondents perceived peer review as helpful for clinical quality improvement, 15% indicated that they were aware of peer review misuse or abuse."
Comment: I believe that it is very significant that 15% of physicians were aware of peer review misuse or abuse. How many physicians or surgeons need to be destroyed professionally before we get serious about taking some action?
Statement: "Successful peer review therefore depends on minimizing litigation over hospital peer review decisions (AMA Policy H-375.979, AMA Policy Database)."
Comment: Even though that is true, there is no balancing protection of the rights or safeguards to maintain the credibility and integrity of the process to standards that prevent abuse.
Statement: "Congress, when enacting HCQIA, found that peer review is needed to maintain and improve quality medical care. It has also found that physicians must be protected from liability for engaging in peer reviews, if they are to participate in the process (42 U.S.C. §§ 11101). For these reasons, HCQIA has erected several legal safeguards against attacks on the peer review process. One such safeguard is immunity from monetary damages for peer review bodies and those who assist in the peer review process (42 U.S.C. § 11111(a)(1)).[5] This immunity is provided so long as the peer review action has met certain minimal procedural standards and was taken “in the reasonable belief that the action was in the furtherance of quality health care” (42 U.S.C. § 11112)."
Comment: In case the reader has not noticed, such a strong protection and immunity to the participating physicians in the peer review process is provided even if the procedure standards are "minimal" and if the belief that the basis for eliminating a physician is just "reasonable". Only those low standards of evidence are enough to destroy a physician. I believe that this is wrong and I wonder if it is even constitutional.
Statement: "A fourth legal obstacle arises from the complaining physician’s inherent burden of proof. The physician claiming an inappropriate peer review may have to show more than that the peer reviewers were mistaken. He or she may also have to show that the peer reviewers were motivated by bad faith or some other discriminatory animus. It is always difficult to prove that one’s opponent acted with wrongful intent, rather than through simple error."
Comment: That burden on the physician whose professional survival is being attacked, is almost impossible to overcome. It is because of that and other legal hurdles that a hospital knows very well that it has the upper hand from the beginning. This is a recipe for abuse.
Statement: "The complaining physician must rely solely on his or her own resources to prosecute the case, while the legal defense costs are likely to be paid at least partially, if not wholly, by an insurer or by a hospital. Psychologically, the complainant stands alone, while the defendants can provide each other with moral support. Furthermore, the peer reviewed physician knows that if he or she loses a lawsuit against the peer reviewers or the peer review body, the physician could suffer public disgrace and might become ostracized from others within the medical profession."
Comment: How fair is that?
Statement: "For all of these reasons, one can expect that only an exceptional situation is likely to result in a legal finding that an adverse peer review resulted from improper motives, rather than an honest desire to further quality health care."
Comment: Another support to the position that there is no way to really be honest and in the same time say that abusing the peer review process is rare. Furthermore, I believe that even one good physician being wrongfully destroyed so fiercely, is too many.
Statement: "The AMA believes that medical peer review should be an organized effort to evaluate and analyze medical care services delivered to patients and to assure the quality and appropriateness of these services. It is primarily an ongoing, educational process, whose purpose is to maintain and improve the quality of medical care (Policy H-375.997)."
Comment: This should be the norm, the standard to which hospital peer review processes should be held. A hospital that does not have any significant constructive on-going educational peer review processes in place with the goal of maintaining and improving quality is falling to substandard levels itself. If the only peer review process that such a hospital has is to work an elaborate legally-crafted elimination process to selected providers, then there is a problem with that hospital's peer review process.
Statement: "More likely, though, is that peer review abuse is a rarity."
Comment: This is an unproven statement. How can one be comfortable taking the position that an an event is rare, if one agrees that it is hard to prove or disprove its occurrence in the first place? Furthermore, even such a perception should never be used as an excuse to not reform the current process to make it fair and just, rather than being open for corruption and abuse.
Statement: "The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible."
Comment: I hope that the statement is not trying to imploy that making the peer review process so difficult to challenge, since a challenge is not impossible, is OK. This is so tilted against the physician. Most victims do not even have the resources to legally fight, Making it near impossible is not right.
Statement: If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance.
Comment: Not if the abuse of the peer review process is so hard to prove, as has been repeatedly stated in the report itself. Besides, whether rare or not, the system should not be set up in a manner that is open to abuse.
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The full report
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Subject: Inappropriate Peer Review
Presented by: Edward L. Langston, MD, Chair
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At the 2007 Annual Meeting, the American Medical Association (AMA) House of Delegates adopted amended Resolution 18. Resolution 18 directed the Board of Trustees to report on abuses of the peer review process. The resolution asked that the report consider situations in which medical staff peer review has been employed for reasons other than maintaining and improving public health, such as to be rid of a competitor or to sanction a physician who disagrees in good faith with hospital policies. This informational report responds to that request.[1]
While charges of peer review abuse are made with some frequency, they are difficult to prove, and there have been few confirmed cases of such abuse. Estimates of the occurrence of abuse are speculative.
Perceptions of Peer Review Abuse
A sanction by a peer review body can be a devastating blow to a physician, emotionally, financially, and professionally.[2] Those who have been so sanctioned frequently claim to be victims of “sham” peer review.
Various organizations publicly proclaim their distaste for peer review and advocate for a reduction of the legislative protections established in the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. §§ 11101, et seq.[3] For example, the web sites for the Semmelweis Society, http://www.semmelweis.org/, and the Center for Peer Review, http://www.peerreview.org/, recite numerous instances of what they deem “sham” or “bad faith” peer review. Likewise, the American Association of Physicians and Surgeons (AAPS) asserts on its web site that “[s]ham peer review is not only very real, but is epidemic in this country.” AAPS characterizes HCQIA as “[t]he enabling source of this insidious and spreading evil” (http://www.aapsonline.org/peerreview/test-5-15-07.php).
AMA publications have noted the vociferous critics of peer review. In its January/February 2004 issue, AMAVoice highlighted three physicians who had spoken against hospital practices and then been threatened with or actually experienced a loss of privileges. While the article did not specifically refer to inappropriate peer review, that was the implication. The article quoted one of the featured physicians as saying: “There’s definitely a ‘kill the messenger’ mentality in medicine today.” Another said: “If you do speak up for the patient … you risk being labeled disruptive, which can lead to termination. The system has been perverted.” Subsequently, the May/June 2004 issue of AMAVoice published a letter from three other physicians on the medical staff of one of the highlighted hospitals, asserting the integrity of its credentialing process. Immediately following that letter, AMAVoice stated that its earlier article “did not intend to cast doubt on [the hospital’s] commitment to patient care.”
Similarly, the October 10, 2005 issue of AMNews published an article entitled “Peer Review Under Fire: Real Problems or Trumped-Up Accusations?” While the article quotes sources, including an AMA spokesperson, who support peer review and vouch for its integrity, it primarily repeats the charges of those who attack the process. Likewise, on August 15, 2005 Time Magazine ran an article on “Doctors Who Hurt Doctors,” suggesting that peer review abuse is widespread within the medical profession and that peer review confidentiality statutes further such misfeasance.
The Massachusetts Medical Society surveyed Massachusetts physicians in late 2006 to ascertain their experiences with and attitude toward peer review. While 88% of the respondents perceived peer review as helpful for clinical quality improvement, 15% indicated that they were aware of peer review misuse or abuse.[4]
In short, accusations of improper peer review are readily made, and those accusations can lend themselves to media coverage. By the same token, it is easy to charge that peer review manifests the medical profession’s desire to avoid scrutiny of a supposedly tainted process. Actual proof of wrongdoing, however, is a different story.
Legal and Practical Impediments to Proving Peer Review Abuse
Successful peer review depends on the cooperation of the medical profession. Physicians are very aware that a doctor who has suffered an adverse peer review outcome may have the motivation and sometimes the financial resources to challenge the action in litigation. Such awareness can potentially chill participation in the peer review process. Successful peer review therefore depends on minimizing litigation over hospital peer review decisions (AMA Policy H-375.979, AMA Policy Database).
Congress, when enacting HCQIA, found that peer review is needed to maintain and improve quality medical care. It has also found that physicians must be protected from liability for engaging in peer reviews, if they are to participate in the process (42 U.S.C. §§ 11101). For these reasons, HCQIA has erected several legal safeguards against attacks on the peer review process.
One such safeguard is immunity from monetary damages for peer review bodies and those who assist in the peer review process (42 U.S.C. § 11111(a)(1)).[5] This immunity is provided so long as the peer review action has met certain minimal procedural standards and was taken “in the reasonable belief that the action was in the furtherance of quality health care” (42 U.S.C. § 11112).[6] While a peer review action taken for reasons other than the furtherance of quality health care would necessarily fail this standard and thus not be entitled to immunity, HCQIA also states that a professional review action is presumed to have met the standard. Thus, the physician who is attacking the peer review process must overcome a presumption that those who participated in the process are entitled to immunity from damages. In a close case, this burden may cause a challenge to the peer review action to fail. In light of this barrier, those who would otherwise seek to overcome an adverse decision may be dissuaded from even mounting an attack.
A second safeguard is a provision in HCQIA that allows an award of attorneys fees against a physician who has unsuccessfully sued to contest a peer review action, if the lawsuit was brought without a reasonable basis. This provision states that:
“[T]he court shall, at the conclusion of the action, award to a substantially prevailing party defending against any such claim the cost of the suit attributable to such claim, including a reasonable attorney’s fee, if the claim, or the claimant’s conduct during the litigation of the claim, was frivolous, unreasonable, without foundation, or in bad faith” (42 U.S.C. § 11113).
The fear of incurring such a sanction may deter an otherwise meritorious case from being filed.[7]
Third, while HCQIA does not create a privilege against the disclosure of peer review documents, the laws in almost all of the states do.[8] A physician who challenges the peer review outcome has the burden of proving the impropriety of the process. Without the evidence available through the discovery of peer review information, that evidentiary burden may be more difficult to overcome.
A fourth legal obstacle arises from the complaining physician’s inherent burden of proof. The physician claiming an inappropriate peer review may have to show more than that the peer reviewers were mistaken. He or she may also have to show that the peer reviewers were motivated by bad faith or some other discriminatory animus. It is always difficult to prove that one’s opponent acted with wrongful intent, rather than through simple error.
Aside from these legal impediments against challenges to an unfavorable peer review outcome, a physician may face practical and social obstacles. The complaining physician must rely solely on his or her own resources to prosecute the case, while the legal defense costs are likely to be paid at least partially, if not wholly, by an insurer or by a hospital. Psychologically, the complainant stands alone, while the defendants can provide each other with moral support. Furthermore, the peer reviewed physician knows that if he or she loses a lawsuit against the peer reviewers or the peer review body, the physician could suffer public disgrace and might become ostracized from others within the medical profession.
For all of these reasons, one can expect that only an exceptional situation is likely to result in a legal finding that an adverse peer review resulted from improper motives, rather than an honest desire to further quality health care.
Proven Cases of Inappropriate Peer Review
In Patrick v. Burget, 486 U.S. 94 (1988), the United States Supreme Court upheld a jury verdict, based on a finding that a peer review proceeding had been conducted in bad faith and to disadvantage a competitor, rather than to improve patient care. Following Patrick, the AMA adopted Policy H-375.983, “Appropriate Peer Review Procedures,” which cautions hospitals and medical staffs to observe the HCQIA guidelines at 42 U.S.C. § 11112 in conducting peer review.[9]
In 1989, the Colorado General Assembly designated a “Committee on Anticompetitive Conduct,” which consists of certain members of the Colorado State Board of Medical Examiners. The Committee is required to investigate complaints of “unreasonable anticompetitive conduct” in medical peer reviews. C.R.S. § 12-36.5-106.[10] Pursuant to a request made under the Colorado Open Records Act, the Committee indicated that since 1990 it has found two cases of anticompetitive peer review.
In Rosenblit v. Superior Court, 282 Cal. Rptr. 819 (1991), a peer review action had been instituted against an endocrinologist who employed a different method for managing diabetes than the approach used by his colleagues on the medical staff at his hospital, and the physician’s staff privileges were revoked after an adverse finding by a hearing panel. The Court of Appeal found numerous procedural errors in the peer review, including improper notice, refusal to provide an opportunity to copy the medical records that were to be used against him, refusal to allow legal representation, and denial of an opportunity to test the members of the hearing panel for bias. In reversing the revocation of the physician’s staff privileges, the court stated: “The record demonstrates Hospital was dedicated to removing Rosenblit rather than providing a physician with a fair opportunity to defend his treatment regimen.”
Clark v. Columbia/HCA Information Services, 25 P.3d 215 (Nev. 2001), found that a physician had overcome the presumption of good faith that ordinarily attaches to a peer review action. The evidence there showed that a peer review board had found the physician “disruptive” because he had reported substandard patient care to government authorities and to the Joint Commission on Accreditation of Healthcare Organizations.
In August, 2004, a jury found a Dallas hospital and three of its physicians liable to a cardiologist for defamation, violation of contract, and intentional infliction of emotional distress for an unfair suspension of privileges, based on an allegedly faulty peer review. It entered a $366 million verdict for the aggrieved physician, an amount later reduced by the trial court. See Poliner v. Presbyterian Hospital of Dallas, 239 F.R.D. 468 (N.D.Tex. 2006) (reducing jury award). That case, however, is on appeal.
These are the only cases known to the AMA in which there has been an actual finding by an impartial government body of improperly motivated peer review. While other cases have found an abridgement of procedural rights in the peer review process, such abridgements may, but do not necessarily, prove a motivation for the peer review other than unbiased concern for public health.
Conclusion
The AMA believes that medical peer review should be an organized effort to evaluate and analyze medical care services delivered to patients and to assure the quality and appropriateness of these services. It is primarily an ongoing, educational process, whose purpose is to maintain and improve the quality of medical care (Policy H-375.997).
However, peer review can sometimes be an adversarial, fault-finding process. It then becomes complex and contentious, and procedural safeguards must be followed to protect individual rights. Witnesses’ statements can conflict, and their testimony can be motivated by selfish as well as altruistic purposes. Errors may be made, both in the procedures followed and in the substantive conclusions reached. However, the commission of a mistake is not the same thing as the perpetration of a deliberate wrongdoing.
Abuse of peer review is easy to allege but, for the reasons discussed above, can be difficult to prove. Considering the nature of the proceedings, it is to be expected that such charges will be raised by physicians who disagree with the results. In fairness, though, those who raise such claims should have the burden of proving them. Since the passage of HCQIA in 1986, the AMA is aware of only exceptional, isolated instances of peer review determinations that have resulted from improper motivations, rather than a good faith desire to improve patient care.
This may partly be explained by the difficulties in proving such a case and the legal disincentives against bringing this type of lawsuit. More likely, though, is that peer review abuse is a rarity. The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible. If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance. The absence of such a record suggests that the claims of widespread or frequent “sham peer review” are speculative.
The Board believes that Policy H-375.983 provides important guidance to medical staffs of the procedural safeguards that will minimize the likelihood of inappropriate peer reviews. H-375.983 is quite detailed, and any amendments to it that might create further complexity could obscure its value as an understandable guideline. The full text of H-375.983 is attached to this informational report.
(1) Our AMA urges state medical associations to investigate applicable state law to determine if additional state agency supervision of peer review is needed to meet the active state supervision requirement set forth by the Supreme Court.
(2) Peer review procedures and actions should, at a minimum, meet the Health Care Quality Improvement Act of 1986 standards for federal immunity: (a) In any situation where it appears that a disciplinary proceeding may be instigated against a physician that could result in the substantial loss or termination of the physician’s medical staff membership and/or clinical privileges, the advice and guidance of legal counsel should be sought. The accused physician should have legal counsel separate from the health care organization or medical staff. The health care organization and the medical staff should each have separate legal counsel. The attorney of the body bringing the peer review action, be it the health care organization or the medical staff, should undertake the procedures needed to prepare for the hearing including the written notice of charges, the marshaling of evidence and the facts, and the selection of witnesses. This health care organization or medical staff attorney should be instructed that his or her role includes assuring that the proceedings are conducted fairly, bearing in mind the objectives of protecting consumers of health care and the physician involved against false or exaggerated charges. The attorney for the body which is not bringing the peer review action should work to ensure that proper peer review processes as outlined in the medical staff bylaws are followed. The role of the attorney for the accused physician is solely to defend his or her client. (b) The medical executive committee, through its attorney, may consult with the health care organization, through its attorney, regarding appointment of a hearing officer. If an attorney is sought to be the hearing officer, those solo attorneys or attorneys from a firm regularly used by the hospital, medical staff, or the involved medical staff member or applicant for membership for legal advice regarding their affairs and activities, should not be eligible to serve as hearing officers. The hearing officer shall gain no direct financial benefit from the outcome. (c) The attorney advising the medical staff or, in the limited situation where the hospital is prosecuting the correction action, the attorney advising the health care organization, and the attorney representing the physician involved should be accorded reasonable latitude in cross-examination, but acrimony should not be allowed by the hearing officer. (d) Substantial latitude should be permitted in the presentation of evidence, medical reference works and testimony, within reasonable time constraints and at the discretion of the hearing officer. (e) A court reporter should be present to make a record of the hearing proceedings, and the pre-hearing proceedings if deemed appropriate by the hearing officer. The cost of attendance of the court report shall be borne by the hospital, but the cost of the transcript, if any, shall be borne by the party requesting it. (f) Within the discretion of the hearing officer, witnesses may be requested to testify under oath. (g) The role of the hearing panel should be defined in the medical staff bylaws. The role of the hearing panel may include, without being limited to, such duties as: acting as an objective arbiter of evidence, examining witnesses, determining adherence to the standard of care, providing well-reasoned documented opinions and decisions, and other duties noted herein. The hearing panel should only consist of physicians, none of whom are direct economic competitors with the physician involved or who stand to gain through a recommendation or decision adverse to the physician. It is desirable that members of the hearing panel be physicians who have the respect of the medical community, and should include a fair representation of the same specialists/subspecialist physicians as the physician involved, whenever feasible. (h) Physicians serving on the hearing panel should receive information and training in the elements and essentials of peer review. Clinical guidelines, standards and practices used for evaluation of quality of care should be transparent and available to the extent feasible. Wherever feasible, data collection and analysis, or similar assessment instruments, and multiple reviewers should be used to increase reliability in evaluating whether peer review disciplinary proceedings are warranted. Where feasible, statistical analysis to compare with peers’ performance must be used with appropriate case mix adjustments. (i) Physicians who are direct economic competitors of the physician involved may testify as witnesses, whether they are called by the physician or the hearing panel or the health care organization, but a physician should not be deprived of his or her privileges solely on the basis of medical testimony by economic competitors. In any proceedings that result in the termination of privileges, there should be testimony from one or more physicians who are not economic competitors or who do not stand to gain economically by an adverse action, but who are knowledgeable in the treatment, patient care management and areas of medical practice or judgment upon which the adverse action is based. (j) The hearing panel should credit the evidence brought before it in a manner reflective of the specificity of the evidence and the personal or economic biases of witnesses. (k) When investigation is underway and indicates that a disciplinary proceeding is warranted for the purpose of reducing, restricting, or terminating a physician’s hospital privileges, he or she should be notified that resignation will result in a report to the National Practitioner Data Bank. (BOT Rep. MMM, A-88; Reaffirmed: Sunset Report, I-98; Reaffirmed: BOT Rep. 8, I-01; Reaffirmation A-05; Amended with change in title: BOT Action in response to referred for decision BOT Rep. 23, A-05)
________________________________________
[1] This informational report is limited to a discussion of improperly motivated physician peer reviews, a violation of both legal standards and of medical ethics. It does not address all situations in which a physician’s procedural rights may have been violated in the peer review process. That a peer review has violated a physician’s procedural rights does not ipso facto imply that the peer review was improperly motivated.
[2] Some commentators have questioned whether, in light of its burdens, peer review is even justified. E.g., Livingston, EH, Peer Review, Am. J. Surg. 2001; 182: 103-109; Scheutzow, SO, State Medical Peer Review: High Cost but no Benefit – Is It Time for a Change? Am. J. Law Med. 1999. AMA policy, however, unequivocally and properly supports peer review. See Ethical Opinion E-9.10 and Policies H-375.990, H-375.994, H-375.995, H-375.996, and H-377.998, AMA Policy Database.
[3] HCQIA is a federal law that recognizes the value of peer review as a mechanism to reduce medical errors, primarily in hospital settings. The statute encourages peer review by immunizing participants in peer review actions from potential liability on account of lawsuits that may be brought by those adversely affected by the peer reviewers. 42 U.S.C. § 11111 (discussed at greater length infra). HCQIA also establishes the National Practitioner Data Bank, which serves as a repository of peer review determinations, orders from medical licensure boards, and judgments or settlements in professional liability suits that concern physician competence. 42 U.S.C. §§ 11131, et seq.
[4] 24% of the respondents to the Massachusetts Medical Society survey indicated that they had actually been subjects of peer review. Of those who had been such subjects, a substantial percentage indicated that they felt the process was unfair and would be afraid of a future peer review and/or would be afraid to refer a colleague for peer review. Those who felt the process was unfair often complained of harassment from colleagues or hospital administrators or a lack of support from colleagues.
[5] Immunity from monetary damages is not afforded for claims based on civil rights violations, including violations arising from discrimination on account of race, color, religion, or national origin. 42 U.S.C. § 11111(a)(1).
[6] State laws may provide comparable immunities, which are also generally triggered by adherence to procedural safeguards in the hearing process. The AMA’s “Physician’s Guide to Medical Staff Organization Bylaws” (4th Ed.), at pp. 52-55, sets forth a more comprehensive explanation of the applicable procedural standards for peer review actions under HCQIA and selected state laws.
[7] In addition to 42 U.S.C. § 11113, Fed. R. Civ. P. 11 provides that a party who files a frivolous lawsuit may be required to pay the attorney’s fees and costs of the defendant. See Wei v. Bodner, 1992 U.S. Dist. LEXIS 10897 (D.N.J. 1992) (Anesthesiologist required to pay defendants’ fees and costs of over $450,000). An attorney who brings a frivolous lawsuit to challenge a peer review action may also be sanctioned under Rule 11. Smith v. Ricks, 31 F.3d 1478 (9th Cir. 1994), cert. denied, 514 U.S. 1035 (1995).
[8] However, federal law does not recognize a comparable peer review confidentiality privilege. The AMA has for years been urging passage of such a protective measure (H-375.972).
[9] Policy H-375.983 was subsequently expanded to include additional procedural protections, even beyond those required under HCQIA.
[10] The AMA was unable to find any other state law comparable to Colorado’s, in which a state agency is specifically charged with investigating improperly motivated peer reviews.
http://www.ama-assn.org/ama1/pub/upload/mm/471/bot24.doc
According to the document, during the 2007 Annual Meeting, the American Medical Association (AMA) House of Delegates adopted an amendment that directed the Board of Trustees to report on abuses of the peer review process. The resolution asked that the report consider situations in which medical staff peer review has been employed for reasons other than maintaining and improving public health, such as to be rid of a competitor or to sanction a physician who disagrees in good faith with hospital policies. The document that is discussed here was the response to that request. I will post selected statements from the report/document, and will then follow with a comment.
Statement: "While charges of peer review abuse are made with some frequency, they are difficult to prove, and there have been few confirmed cases of such abuse. Estimates of the occurrence of abuse are speculative."
Comment: It is so important to realize this fact, and I cannot state it any better than it is stated in the report. My comment is that, since it is so difficult to prove abuse of the peer review process, then one cannot make any serious or meaningful estimates as to the frequency of such abuses. In other words, any estimates whether abuses are rare or common are purely speculative. And since abusing the peer review process has extremely serious and destructive consequences, it is detrimental to the medical profession to use the argument that abuses are rare in order to keep the status quo. In my opinion, it is important to make the peer review process more efficient and well balanced, and inherently abuse-proof, rather than accepting it as it is now, and arguing that abuses are rare.
Statement: "A sanction by a peer review body can be a devastating blow to a physician, emotionally, financially, and professionally."
Comment: Again, I cannot state that any better than the AMA. To put things in perspective, the Mission of the American Medical Association is "To promote the art and science of medicine and the betterment of public health." The stated AMA Vision is: "To be an essential part of the professional life of every physician." I would expect that an AMA with such a "Vision" must have strong positions and proposals to prevent abuses and guard against sham peer reviews, since the devastating effects have clearly been acknowledged.
Statement: "The Massachusetts Medical Society surveyed Massachusetts physicians in late 2006 to ascertain their experiences with and attitude toward peer review. While 88% of the respondents perceived peer review as helpful for clinical quality improvement, 15% indicated that they were aware of peer review misuse or abuse."
Comment: I believe that it is very significant that 15% of physicians were aware of peer review misuse or abuse. How many physicians or surgeons need to be destroyed professionally before we get serious about taking some action?
Statement: "Successful peer review therefore depends on minimizing litigation over hospital peer review decisions (AMA Policy H-375.979, AMA Policy Database)."
Comment: Even though that is true, there is no balancing protection of the rights or safeguards to maintain the credibility and integrity of the process to standards that prevent abuse.
Statement: "Congress, when enacting HCQIA, found that peer review is needed to maintain and improve quality medical care. It has also found that physicians must be protected from liability for engaging in peer reviews, if they are to participate in the process (42 U.S.C. §§ 11101). For these reasons, HCQIA has erected several legal safeguards against attacks on the peer review process. One such safeguard is immunity from monetary damages for peer review bodies and those who assist in the peer review process (42 U.S.C. § 11111(a)(1)).[5] This immunity is provided so long as the peer review action has met certain minimal procedural standards and was taken “in the reasonable belief that the action was in the furtherance of quality health care” (42 U.S.C. § 11112)."
Comment: In case the reader has not noticed, such a strong protection and immunity to the participating physicians in the peer review process is provided even if the procedure standards are "minimal" and if the belief that the basis for eliminating a physician is just "reasonable". Only those low standards of evidence are enough to destroy a physician. I believe that this is wrong and I wonder if it is even constitutional.
Statement: "A fourth legal obstacle arises from the complaining physician’s inherent burden of proof. The physician claiming an inappropriate peer review may have to show more than that the peer reviewers were mistaken. He or she may also have to show that the peer reviewers were motivated by bad faith or some other discriminatory animus. It is always difficult to prove that one’s opponent acted with wrongful intent, rather than through simple error."
Comment: That burden on the physician whose professional survival is being attacked, is almost impossible to overcome. It is because of that and other legal hurdles that a hospital knows very well that it has the upper hand from the beginning. This is a recipe for abuse.
Statement: "The complaining physician must rely solely on his or her own resources to prosecute the case, while the legal defense costs are likely to be paid at least partially, if not wholly, by an insurer or by a hospital. Psychologically, the complainant stands alone, while the defendants can provide each other with moral support. Furthermore, the peer reviewed physician knows that if he or she loses a lawsuit against the peer reviewers or the peer review body, the physician could suffer public disgrace and might become ostracized from others within the medical profession."
Comment: How fair is that?
Statement: "For all of these reasons, one can expect that only an exceptional situation is likely to result in a legal finding that an adverse peer review resulted from improper motives, rather than an honest desire to further quality health care."
Comment: Another support to the position that there is no way to really be honest and in the same time say that abusing the peer review process is rare. Furthermore, I believe that even one good physician being wrongfully destroyed so fiercely, is too many.
Statement: "The AMA believes that medical peer review should be an organized effort to evaluate and analyze medical care services delivered to patients and to assure the quality and appropriateness of these services. It is primarily an ongoing, educational process, whose purpose is to maintain and improve the quality of medical care (Policy H-375.997)."
Comment: This should be the norm, the standard to which hospital peer review processes should be held. A hospital that does not have any significant constructive on-going educational peer review processes in place with the goal of maintaining and improving quality is falling to substandard levels itself. If the only peer review process that such a hospital has is to work an elaborate legally-crafted elimination process to selected providers, then there is a problem with that hospital's peer review process.
Statement: "More likely, though, is that peer review abuse is a rarity."
Comment: This is an unproven statement. How can one be comfortable taking the position that an an event is rare, if one agrees that it is hard to prove or disprove its occurrence in the first place? Furthermore, even such a perception should never be used as an excuse to not reform the current process to make it fair and just, rather than being open for corruption and abuse.
Statement: "The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible."
Comment: I hope that the statement is not trying to imploy that making the peer review process so difficult to challenge, since a challenge is not impossible, is OK. This is so tilted against the physician. Most victims do not even have the resources to legally fight, Making it near impossible is not right.
Statement: If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance.
Comment: Not if the abuse of the peer review process is so hard to prove, as has been repeatedly stated in the report itself. Besides, whether rare or not, the system should not be set up in a manner that is open to abuse.
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The full report
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REPORT OF THE BOARD OF TRUSTEES
B of T Report 24 - A-08
Subject: Inappropriate Peer Review
Presented by: Edward L. Langston, MD, Chair
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At the 2007 Annual Meeting, the American Medical Association (AMA) House of Delegates adopted amended Resolution 18. Resolution 18 directed the Board of Trustees to report on abuses of the peer review process. The resolution asked that the report consider situations in which medical staff peer review has been employed for reasons other than maintaining and improving public health, such as to be rid of a competitor or to sanction a physician who disagrees in good faith with hospital policies. This informational report responds to that request.[1]
While charges of peer review abuse are made with some frequency, they are difficult to prove, and there have been few confirmed cases of such abuse. Estimates of the occurrence of abuse are speculative.
Perceptions of Peer Review Abuse
A sanction by a peer review body can be a devastating blow to a physician, emotionally, financially, and professionally.[2] Those who have been so sanctioned frequently claim to be victims of “sham” peer review.
Various organizations publicly proclaim their distaste for peer review and advocate for a reduction of the legislative protections established in the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. §§ 11101, et seq.[3] For example, the web sites for the Semmelweis Society, http://www.semmelweis.org/, and the Center for Peer Review, http://www.peerreview.org/, recite numerous instances of what they deem “sham” or “bad faith” peer review. Likewise, the American Association of Physicians and Surgeons (AAPS) asserts on its web site that “[s]ham peer review is not only very real, but is epidemic in this country.” AAPS characterizes HCQIA as “[t]he enabling source of this insidious and spreading evil” (http://www.aapsonline.org/peerreview/test-5-15-07.php).
AMA publications have noted the vociferous critics of peer review. In its January/February 2004 issue, AMAVoice highlighted three physicians who had spoken against hospital practices and then been threatened with or actually experienced a loss of privileges. While the article did not specifically refer to inappropriate peer review, that was the implication. The article quoted one of the featured physicians as saying: “There’s definitely a ‘kill the messenger’ mentality in medicine today.” Another said: “If you do speak up for the patient … you risk being labeled disruptive, which can lead to termination. The system has been perverted.” Subsequently, the May/June 2004 issue of AMAVoice published a letter from three other physicians on the medical staff of one of the highlighted hospitals, asserting the integrity of its credentialing process. Immediately following that letter, AMAVoice stated that its earlier article “did not intend to cast doubt on [the hospital’s] commitment to patient care.”
Similarly, the October 10, 2005 issue of AMNews published an article entitled “Peer Review Under Fire: Real Problems or Trumped-Up Accusations?” While the article quotes sources, including an AMA spokesperson, who support peer review and vouch for its integrity, it primarily repeats the charges of those who attack the process. Likewise, on August 15, 2005 Time Magazine ran an article on “Doctors Who Hurt Doctors,” suggesting that peer review abuse is widespread within the medical profession and that peer review confidentiality statutes further such misfeasance.
The Massachusetts Medical Society surveyed Massachusetts physicians in late 2006 to ascertain their experiences with and attitude toward peer review. While 88% of the respondents perceived peer review as helpful for clinical quality improvement, 15% indicated that they were aware of peer review misuse or abuse.[4]
In short, accusations of improper peer review are readily made, and those accusations can lend themselves to media coverage. By the same token, it is easy to charge that peer review manifests the medical profession’s desire to avoid scrutiny of a supposedly tainted process. Actual proof of wrongdoing, however, is a different story.
Legal and Practical Impediments to Proving Peer Review Abuse
Successful peer review depends on the cooperation of the medical profession. Physicians are very aware that a doctor who has suffered an adverse peer review outcome may have the motivation and sometimes the financial resources to challenge the action in litigation. Such awareness can potentially chill participation in the peer review process. Successful peer review therefore depends on minimizing litigation over hospital peer review decisions (AMA Policy H-375.979, AMA Policy Database).
Congress, when enacting HCQIA, found that peer review is needed to maintain and improve quality medical care. It has also found that physicians must be protected from liability for engaging in peer reviews, if they are to participate in the process (42 U.S.C. §§ 11101). For these reasons, HCQIA has erected several legal safeguards against attacks on the peer review process.
One such safeguard is immunity from monetary damages for peer review bodies and those who assist in the peer review process (42 U.S.C. § 11111(a)(1)).[5] This immunity is provided so long as the peer review action has met certain minimal procedural standards and was taken “in the reasonable belief that the action was in the furtherance of quality health care” (42 U.S.C. § 11112).[6] While a peer review action taken for reasons other than the furtherance of quality health care would necessarily fail this standard and thus not be entitled to immunity, HCQIA also states that a professional review action is presumed to have met the standard. Thus, the physician who is attacking the peer review process must overcome a presumption that those who participated in the process are entitled to immunity from damages. In a close case, this burden may cause a challenge to the peer review action to fail. In light of this barrier, those who would otherwise seek to overcome an adverse decision may be dissuaded from even mounting an attack.
A second safeguard is a provision in HCQIA that allows an award of attorneys fees against a physician who has unsuccessfully sued to contest a peer review action, if the lawsuit was brought without a reasonable basis. This provision states that:
“[T]he court shall, at the conclusion of the action, award to a substantially prevailing party defending against any such claim the cost of the suit attributable to such claim, including a reasonable attorney’s fee, if the claim, or the claimant’s conduct during the litigation of the claim, was frivolous, unreasonable, without foundation, or in bad faith” (42 U.S.C. § 11113).
The fear of incurring such a sanction may deter an otherwise meritorious case from being filed.[7]
Third, while HCQIA does not create a privilege against the disclosure of peer review documents, the laws in almost all of the states do.[8] A physician who challenges the peer review outcome has the burden of proving the impropriety of the process. Without the evidence available through the discovery of peer review information, that evidentiary burden may be more difficult to overcome.
A fourth legal obstacle arises from the complaining physician’s inherent burden of proof. The physician claiming an inappropriate peer review may have to show more than that the peer reviewers were mistaken. He or she may also have to show that the peer reviewers were motivated by bad faith or some other discriminatory animus. It is always difficult to prove that one’s opponent acted with wrongful intent, rather than through simple error.
Aside from these legal impediments against challenges to an unfavorable peer review outcome, a physician may face practical and social obstacles. The complaining physician must rely solely on his or her own resources to prosecute the case, while the legal defense costs are likely to be paid at least partially, if not wholly, by an insurer or by a hospital. Psychologically, the complainant stands alone, while the defendants can provide each other with moral support. Furthermore, the peer reviewed physician knows that if he or she loses a lawsuit against the peer reviewers or the peer review body, the physician could suffer public disgrace and might become ostracized from others within the medical profession.
For all of these reasons, one can expect that only an exceptional situation is likely to result in a legal finding that an adverse peer review resulted from improper motives, rather than an honest desire to further quality health care.
Proven Cases of Inappropriate Peer Review
In Patrick v. Burget, 486 U.S. 94 (1988), the United States Supreme Court upheld a jury verdict, based on a finding that a peer review proceeding had been conducted in bad faith and to disadvantage a competitor, rather than to improve patient care. Following Patrick, the AMA adopted Policy H-375.983, “Appropriate Peer Review Procedures,” which cautions hospitals and medical staffs to observe the HCQIA guidelines at 42 U.S.C. § 11112 in conducting peer review.[9]
In 1989, the Colorado General Assembly designated a “Committee on Anticompetitive Conduct,” which consists of certain members of the Colorado State Board of Medical Examiners. The Committee is required to investigate complaints of “unreasonable anticompetitive conduct” in medical peer reviews. C.R.S. § 12-36.5-106.[10] Pursuant to a request made under the Colorado Open Records Act, the Committee indicated that since 1990 it has found two cases of anticompetitive peer review.
In Rosenblit v. Superior Court, 282 Cal. Rptr. 819 (1991), a peer review action had been instituted against an endocrinologist who employed a different method for managing diabetes than the approach used by his colleagues on the medical staff at his hospital, and the physician’s staff privileges were revoked after an adverse finding by a hearing panel. The Court of Appeal found numerous procedural errors in the peer review, including improper notice, refusal to provide an opportunity to copy the medical records that were to be used against him, refusal to allow legal representation, and denial of an opportunity to test the members of the hearing panel for bias. In reversing the revocation of the physician’s staff privileges, the court stated: “The record demonstrates Hospital was dedicated to removing Rosenblit rather than providing a physician with a fair opportunity to defend his treatment regimen.”
Clark v. Columbia/HCA Information Services, 25 P.3d 215 (Nev. 2001), found that a physician had overcome the presumption of good faith that ordinarily attaches to a peer review action. The evidence there showed that a peer review board had found the physician “disruptive” because he had reported substandard patient care to government authorities and to the Joint Commission on Accreditation of Healthcare Organizations.
In August, 2004, a jury found a Dallas hospital and three of its physicians liable to a cardiologist for defamation, violation of contract, and intentional infliction of emotional distress for an unfair suspension of privileges, based on an allegedly faulty peer review. It entered a $366 million verdict for the aggrieved physician, an amount later reduced by the trial court. See Poliner v. Presbyterian Hospital of Dallas, 239 F.R.D. 468 (N.D.Tex. 2006) (reducing jury award). That case, however, is on appeal.
These are the only cases known to the AMA in which there has been an actual finding by an impartial government body of improperly motivated peer review. While other cases have found an abridgement of procedural rights in the peer review process, such abridgements may, but do not necessarily, prove a motivation for the peer review other than unbiased concern for public health.
Conclusion
The AMA believes that medical peer review should be an organized effort to evaluate and analyze medical care services delivered to patients and to assure the quality and appropriateness of these services. It is primarily an ongoing, educational process, whose purpose is to maintain and improve the quality of medical care (Policy H-375.997).
However, peer review can sometimes be an adversarial, fault-finding process. It then becomes complex and contentious, and procedural safeguards must be followed to protect individual rights. Witnesses’ statements can conflict, and their testimony can be motivated by selfish as well as altruistic purposes. Errors may be made, both in the procedures followed and in the substantive conclusions reached. However, the commission of a mistake is not the same thing as the perpetration of a deliberate wrongdoing.
Abuse of peer review is easy to allege but, for the reasons discussed above, can be difficult to prove. Considering the nature of the proceedings, it is to be expected that such charges will be raised by physicians who disagree with the results. In fairness, though, those who raise such claims should have the burden of proving them. Since the passage of HCQIA in 1986, the AMA is aware of only exceptional, isolated instances of peer review determinations that have resulted from improper motivations, rather than a good faith desire to improve patient care.
This may partly be explained by the difficulties in proving such a case and the legal disincentives against bringing this type of lawsuit. More likely, though, is that peer review abuse is a rarity. The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible. If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance. The absence of such a record suggests that the claims of widespread or frequent “sham peer review” are speculative.
The Board believes that Policy H-375.983 provides important guidance to medical staffs of the procedural safeguards that will minimize the likelihood of inappropriate peer reviews. H-375.983 is quite detailed, and any amendments to it that might create further complexity could obscure its value as an understandable guideline. The full text of H-375.983 is attached to this informational report.
APPENDIX
H-375.983 Appropriate Peer Review Procedures
(1) Our AMA urges state medical associations to investigate applicable state law to determine if additional state agency supervision of peer review is needed to meet the active state supervision requirement set forth by the Supreme Court.
(2) Peer review procedures and actions should, at a minimum, meet the Health Care Quality Improvement Act of 1986 standards for federal immunity: (a) In any situation where it appears that a disciplinary proceeding may be instigated against a physician that could result in the substantial loss or termination of the physician’s medical staff membership and/or clinical privileges, the advice and guidance of legal counsel should be sought. The accused physician should have legal counsel separate from the health care organization or medical staff. The health care organization and the medical staff should each have separate legal counsel. The attorney of the body bringing the peer review action, be it the health care organization or the medical staff, should undertake the procedures needed to prepare for the hearing including the written notice of charges, the marshaling of evidence and the facts, and the selection of witnesses. This health care organization or medical staff attorney should be instructed that his or her role includes assuring that the proceedings are conducted fairly, bearing in mind the objectives of protecting consumers of health care and the physician involved against false or exaggerated charges. The attorney for the body which is not bringing the peer review action should work to ensure that proper peer review processes as outlined in the medical staff bylaws are followed. The role of the attorney for the accused physician is solely to defend his or her client. (b) The medical executive committee, through its attorney, may consult with the health care organization, through its attorney, regarding appointment of a hearing officer. If an attorney is sought to be the hearing officer, those solo attorneys or attorneys from a firm regularly used by the hospital, medical staff, or the involved medical staff member or applicant for membership for legal advice regarding their affairs and activities, should not be eligible to serve as hearing officers. The hearing officer shall gain no direct financial benefit from the outcome. (c) The attorney advising the medical staff or, in the limited situation where the hospital is prosecuting the correction action, the attorney advising the health care organization, and the attorney representing the physician involved should be accorded reasonable latitude in cross-examination, but acrimony should not be allowed by the hearing officer. (d) Substantial latitude should be permitted in the presentation of evidence, medical reference works and testimony, within reasonable time constraints and at the discretion of the hearing officer. (e) A court reporter should be present to make a record of the hearing proceedings, and the pre-hearing proceedings if deemed appropriate by the hearing officer. The cost of attendance of the court report shall be borne by the hospital, but the cost of the transcript, if any, shall be borne by the party requesting it. (f) Within the discretion of the hearing officer, witnesses may be requested to testify under oath. (g) The role of the hearing panel should be defined in the medical staff bylaws. The role of the hearing panel may include, without being limited to, such duties as: acting as an objective arbiter of evidence, examining witnesses, determining adherence to the standard of care, providing well-reasoned documented opinions and decisions, and other duties noted herein. The hearing panel should only consist of physicians, none of whom are direct economic competitors with the physician involved or who stand to gain through a recommendation or decision adverse to the physician. It is desirable that members of the hearing panel be physicians who have the respect of the medical community, and should include a fair representation of the same specialists/subspecialist physicians as the physician involved, whenever feasible. (h) Physicians serving on the hearing panel should receive information and training in the elements and essentials of peer review. Clinical guidelines, standards and practices used for evaluation of quality of care should be transparent and available to the extent feasible. Wherever feasible, data collection and analysis, or similar assessment instruments, and multiple reviewers should be used to increase reliability in evaluating whether peer review disciplinary proceedings are warranted. Where feasible, statistical analysis to compare with peers’ performance must be used with appropriate case mix adjustments. (i) Physicians who are direct economic competitors of the physician involved may testify as witnesses, whether they are called by the physician or the hearing panel or the health care organization, but a physician should not be deprived of his or her privileges solely on the basis of medical testimony by economic competitors. In any proceedings that result in the termination of privileges, there should be testimony from one or more physicians who are not economic competitors or who do not stand to gain economically by an adverse action, but who are knowledgeable in the treatment, patient care management and areas of medical practice or judgment upon which the adverse action is based. (j) The hearing panel should credit the evidence brought before it in a manner reflective of the specificity of the evidence and the personal or economic biases of witnesses. (k) When investigation is underway and indicates that a disciplinary proceeding is warranted for the purpose of reducing, restricting, or terminating a physician’s hospital privileges, he or she should be notified that resignation will result in a report to the National Practitioner Data Bank. (BOT Rep. MMM, A-88; Reaffirmed: Sunset Report, I-98; Reaffirmed: BOT Rep. 8, I-01; Reaffirmation A-05; Amended with change in title: BOT Action in response to referred for decision BOT Rep. 23, A-05)
________________________________________
[1] This informational report is limited to a discussion of improperly motivated physician peer reviews, a violation of both legal standards and of medical ethics. It does not address all situations in which a physician’s procedural rights may have been violated in the peer review process. That a peer review has violated a physician’s procedural rights does not ipso facto imply that the peer review was improperly motivated.
[2] Some commentators have questioned whether, in light of its burdens, peer review is even justified. E.g., Livingston, EH, Peer Review, Am. J. Surg. 2001; 182: 103-109; Scheutzow, SO, State Medical Peer Review: High Cost but no Benefit – Is It Time for a Change? Am. J. Law Med. 1999. AMA policy, however, unequivocally and properly supports peer review. See Ethical Opinion E-9.10 and Policies H-375.990, H-375.994, H-375.995, H-375.996, and H-377.998, AMA Policy Database.
[3] HCQIA is a federal law that recognizes the value of peer review as a mechanism to reduce medical errors, primarily in hospital settings. The statute encourages peer review by immunizing participants in peer review actions from potential liability on account of lawsuits that may be brought by those adversely affected by the peer reviewers. 42 U.S.C. § 11111 (discussed at greater length infra). HCQIA also establishes the National Practitioner Data Bank, which serves as a repository of peer review determinations, orders from medical licensure boards, and judgments or settlements in professional liability suits that concern physician competence. 42 U.S.C. §§ 11131, et seq.
[4] 24% of the respondents to the Massachusetts Medical Society survey indicated that they had actually been subjects of peer review. Of those who had been such subjects, a substantial percentage indicated that they felt the process was unfair and would be afraid of a future peer review and/or would be afraid to refer a colleague for peer review. Those who felt the process was unfair often complained of harassment from colleagues or hospital administrators or a lack of support from colleagues.
[5] Immunity from monetary damages is not afforded for claims based on civil rights violations, including violations arising from discrimination on account of race, color, religion, or national origin. 42 U.S.C. § 11111(a)(1).
[6] State laws may provide comparable immunities, which are also generally triggered by adherence to procedural safeguards in the hearing process. The AMA’s “Physician’s Guide to Medical Staff Organization Bylaws” (4th Ed.), at pp. 52-55, sets forth a more comprehensive explanation of the applicable procedural standards for peer review actions under HCQIA and selected state laws.
[7] In addition to 42 U.S.C. § 11113, Fed. R. Civ. P. 11 provides that a party who files a frivolous lawsuit may be required to pay the attorney’s fees and costs of the defendant. See Wei v. Bodner, 1992 U.S. Dist. LEXIS 10897 (D.N.J. 1992) (Anesthesiologist required to pay defendants’ fees and costs of over $450,000). An attorney who brings a frivolous lawsuit to challenge a peer review action may also be sanctioned under Rule 11. Smith v. Ricks, 31 F.3d 1478 (9th Cir. 1994), cert. denied, 514 U.S. 1035 (1995).
[8] However, federal law does not recognize a comparable peer review confidentiality privilege. The AMA has for years been urging passage of such a protective measure (H-375.972).
[9] Policy H-375.983 was subsequently expanded to include additional procedural protections, even beyond those required under HCQIA.
[10] The AMA was unable to find any other state law comparable to Colorado’s, in which a state agency is specifically charged with investigating improperly motivated peer reviews.
Monday, October 25, 2010
A Good Example of Patient Safety and Quality Improvement Processes
I have to admit that I do not have the details of the patient safety and quality improvement protocols in Australia or New Zealand. But I randomly came across an interesting article that gave me a hint that they are getting it right. The article is titled "'More care needed' in health care". I am comparing what I read, to what we have in the US. In the US, there is no mandate that any quality improvement process be applied fairly, or be constructive or transparent. The majority are spot checks on a targeted physician because of a perceived problem. The article indicates that "[e]very death" in that hospital , "whether expected or unexpected, was thoroughly investigated and the families kept fully informed, all aimed at making sure similar events are not repeated." What I am reading here are three elements that we do not usually have in many community hospitals in USA:
1. The "investigation" is performed for every physician when a certain quality indicator (here, it is "death") occurs. So, this is fairness, as opposed to performing a targeted investigation against a singled-out individual physician.
2. Making sure that such a problem does not recur. This is apparently a constructive process to learn a lesson and prevent recurrence, rather than being obsessed with pointing fingers, blaming, punishing, and eliminating the physician altogether from practice. I assume that there may be instances where harsh measures may be required, but the goal is obviously not to use those extreme measures loosely or as a first-choice.
3. They talk to patients and families about the event. This is transparency at its best. In an open environment like that, you expect continuous improvement of the safety profile and the quality of care. Since the environment is not punitive, there will be no cover-ups, ideally.
I think we, in the US, can learn from that. We really need to reform the process. We owe it to our patients and to our communities. In the presence of shortages, it is a huge problem to have in place a process that can eliminate excellent physicians from serving the community. I hope to see the hospital peer review process in the US becoming so well-developed that it would not be used (abused), as so often it does now, as a sham process for economical or political purposes. If my understanding of the essence of the article is correct, then a big tip of the hat to the quality improvement in Australia (exemplified here by Queensland) and New Zealand (exemplified here by Wanganui)
The above was a comment on the article: 'More care needed' in health care
http://www.wanganuichronicle.co.nz/local/news/more-care-needed-in-health-care/3927524/
1. The "investigation" is performed for every physician when a certain quality indicator (here, it is "death") occurs. So, this is fairness, as opposed to performing a targeted investigation against a singled-out individual physician.
2. Making sure that such a problem does not recur. This is apparently a constructive process to learn a lesson and prevent recurrence, rather than being obsessed with pointing fingers, blaming, punishing, and eliminating the physician altogether from practice. I assume that there may be instances where harsh measures may be required, but the goal is obviously not to use those extreme measures loosely or as a first-choice.
3. They talk to patients and families about the event. This is transparency at its best. In an open environment like that, you expect continuous improvement of the safety profile and the quality of care. Since the environment is not punitive, there will be no cover-ups, ideally.
I think we, in the US, can learn from that. We really need to reform the process. We owe it to our patients and to our communities. In the presence of shortages, it is a huge problem to have in place a process that can eliminate excellent physicians from serving the community. I hope to see the hospital peer review process in the US becoming so well-developed that it would not be used (abused), as so often it does now, as a sham process for economical or political purposes. If my understanding of the essence of the article is correct, then a big tip of the hat to the quality improvement in Australia (exemplified here by Queensland) and New Zealand (exemplified here by Wanganui)
The above was a comment on the article: 'More care needed' in health care
http://www.wanganuichronicle.co.nz/local/news/more-care-needed-in-health-care/3927524/
Monday, October 18, 2010
How To Destroy A Physician: Part 3
Well, I can't think of any better addition to the series "How To Destroy A Physician" than this article that I stumbled upon at link http://www.peerreview.org/articles/destroy.htm
I believe it deserves to occupy part 3 of the series, with full credit being due to the author, William K. Reid, M.D noticing that I am quoting it from the www.peerreview.org website. Here goes:
I believe it deserves to occupy part 3 of the series, with full credit being due to the author, William K. Reid, M.D noticing that I am quoting it from the www.peerreview.org website. Here goes:
HOW TO DESTROY YOUR COMPETITOR | |
| See www.semmelweissociety.net Bring the peer review action in the following ways; 1. Cut the physician's support staff. This generates inefficiency and disharmony in the remaining staff. It also lays the basis for the following. 2. Place a 'mole' in the office staff to collect a list of alleged wrongdoing, including the most trivial rumors and innuendoes. It is not the validity of these allegations, but the volume of the list, which matters. The target physician will be unable to address all the items if it is long, and the community will be more likely to believe it. It is preferable to use an outsider, newly hired, as the mole. Once the target physician is gone, fire the mole. 3. Include the Chief of Staff and two other adversarial physicians in the scheme. They can actually be kept ignorant of the true motives behind the attack. All physicians are busy and might accept data from authoritative figures, without carefully confirming their validity. Tell these doctors, for example, that the target has serious problems, which cannot be revealed without "hurting" him or her, implying personal failings, which must be kept confidential. Hospitals which have this process well greased will usually have the same doctors "elected to key positions year after year. They will maintain a clique of insiders who can be relied on to be supportive. 4. Begin a rumor campaign. Leak allegations to the entire medical staff and community at large. This can be done very cryptically. Any secretary who must type up corporate documents may unwittingly serve the purpose. 5. Restrict the physician's access to records. This will hamper efficiency and prevent proof of competency. 6. Use the most severe punishment (especially summary suspension) at the very outset of the review process. This will emotionally damage the target physician and his/her family, creating a shock effect. It also promotes the community's doubts about the physician's competence and character. This trauma may be all it takes to scare the physician out of town. A hasty departure only further damages the target's credibility, so that he/she will be presumed guilty. The immunity provided by the 1986 law prevents any scrutiny of the decision. 7. Limit the target physician's access to allegations, and keep them as vague as possible. The broader and more nebulous the charge, the harder it is to address it. Make the list as long as possible, even adding half-truths, frivolous allegations, rumors, and outright lies. The target will hardly have time even to read the list, and might succumb without a fight. The sheer length and vagueness of the list assures failure of the target to refute all the charges. One added advantage to a massive list is that any physician asked to review the cases will also be overwhelmed and be more likely to accept the hospital's version of the cases. 8. Prevent the target from obtaining privileges at other institutions. Then, spread rumors to the staff about the rejections by other institutions. This maneuver also keeps the target broken financially, unable to sustain legal aid. 9. Set up hearings so that only a few key insiders know what is happening. By this point, the whole hospital staff may have ostracized the target physician, if the rumors are sufficiently scandalous. 10. To help implement the plan, hire an aggressive law firm that favors corporate interests. Hospitals that routinely practice these schemes seem to use the same law firm. 11. Break the physician financially. Keep the list of allegations and the list of witnesses as long as possible. This will prolong the legal nightmare for the target, producing massive legal fees. The hospital can easily outlast the targeted physician in a protracted legal battle. Clearly such dealings are not isolated incidents. It may well be that this systematic attack on individual physicians is being formulated by law firms that cater to aggressive hospitals, particularly those hospitals with monopolistic aims. The hospital's success in such attacks is almost guaranteed by the new federal law. Even when the hospital committee flagrantly denies due process to the physician, there is no longer a mechanism for exposing such practices. The 1986 law provides a degree of immunity that effectively veils their proceedings. Our best initial recourse is public awareness. If you have had a similar experience, or any insights into hospital-privilege battles, I would be pleased to hear from you. William K. Reid, M.D | |
How to destroy a physician - Part 2 Choosing the Right Target
The typical profile of a good physician/surgeon who would be subjected to a damaging hospital peer review is someone who can be perceived as being an easy target. She/he can have any one or more of the following characteristics:
1. A solo physician, or a physician whose practice partner is not part of the good ol' boys circle.
2. A physician whose medical practice partner is actually not supportive.
3. A physician whose partner is being attacked indirectly.
4. A physician belonging to an unusual profile (eg, a foreign-born physician, an African American physician, a good-looking feminine female surgeon, an unpopular religious affiliation, .... you got the picture)
5. A physician from out-of-state with very, if any, networking connections in the community of the hospital.
1. A solo physician, or a physician whose practice partner is not part of the good ol' boys circle.
2. A physician whose medical practice partner is actually not supportive.
3. A physician whose partner is being attacked indirectly.
4. A physician belonging to an unusual profile (eg, a foreign-born physician, an African American physician, a good-looking feminine female surgeon, an unpopular religious affiliation, .... you got the picture)
5. A physician from out-of-state with very, if any, networking connections in the community of the hospital.
Sunday, October 17, 2010
Sham Peer Review: Napoleonic Law In Medicine
The following article is already available on-line as a PDF document from the following link: www.jpands.org/vol8no3/waite.pdf which came up from a Google search using the keywords "medical center sham peer review". Here goes:
Sham Peer Review:
Napoleonic Law In Medicine
Verner S.Waite, M.D.
Abstract
Professional peer review is intended to protect the public from incompetent or unethical practitioners. However, it could and often does remove the most honest, ethical, and competent physicians, to the advantage of unscrupulous competitors. The Health Care Quality Improvement Act (HCQIA), which was
enacted with the support of the American Medical Association, immunizes false testimony, thus allowing gossip to be converted into testimony and depriving physicians of independent judicial review. The accused physician is often ruined financially. The victim must pay his own legal fees, whereas his accusers are not
responsible for any legal fees, which are paid by the hospital. The National Practitioner Databank (NPDB) transforms “disciplinary” actions into a professional death sentence. The abuse of the process is, unfortunately, widespread.
“Off With His Head!”
My own experience with sham peer review began in 1979. As is true in many cases of sham peer review, the attack was initiated by jealous competitors who viewed a hospital computer printout and
discovered that I was doing approximately twice the volume that they were doing. Never mind the fact that I was going into the hospital, at hours when they would not, to take care of gunshot wounds and indigent patients. My numbers were larger, and they were intent on doing something about it. And thus the first attack
againstmewas launched.
The pretext concerned a 6-year-old boy who presented to the hospital at an inconvenient hour with an epidural hematoma (lifethreatening hemorrhage on the brain). I prevailed upon a neurosurgeon friend of mine to come into the hospital. I assisted him in the surgical evacuation of the hematoma, and the child’s life was saved. Although I was only the assistant surgeon on the case, competitors brought charges against me, accusing me of operating outside of my area of competence and expertise. My qualifications, however,
as assistant surgeon in this case included training at City Hospital where I did 19 emergency neurosurgical cases. And in this case, three neurosurgeons had refused to come in to the hospital to care for the comatose child before I was called. This was a true emergency, I responded appropriately, and the documentation in the chart was accurate and complete. As I soon discovered, however, truth is not an impediment to sham peer review.
The surgery department held a fact-finding meeting, which was tape recorded, and two nights later a formal peer review hearing was conducted. Since the tape was favorable to my case, the hospital CEO ordered it to be destroyed. I continued to obtain appropriate consultations when needed, and my privileges remained intact. But this was only the beginning. Other charges soon followed. Attackers coordinated their lies and stories, and it was open season again. Often the only evidence they could offer was “it is so because I say it is so… off with his head!” It was a collaboration between Alice in Wonderland and prestigious purveyors. The charges against me were mounting, and the predators were moving in for the kill.
Fortunately, at that time there was no immunity for peer reviewers who offered false testimony. Therefore, I filed a lawsuit against my attackers in 1984 ( ). Peer review documents were also discoverable and admissible in court at that time. This is no longer the case, purportedly to protect the confidentiality of the accused, although the actual effect in most cases is to protect the accusers. Although the trial itself involved only six cases, an additional 75 charges were made against me only two months before trial. This is a typical tactic used by sham peer reviewers to bolster their case and to intimidate the victim. Some of these cases also involved situations in which I was not the physician of record – another common tactic used in sham peer review. At trial, the judge ordered the hospital to produce a transcript of the exculpatory tape that the hospital CEO had ordered to be destroyed. The hospital’s copy of the transcript was twelve pages long. The one that I was given was only two pages long. Both the judge and jury noted this glaring discrepancy. Blatant inconsistencies were also noted in testimony provided by many of my accusers. In pretrial deposition and also at trial, the hospital administrator admitted to knowing that the case against me was based on lies.
The hospital CEO was were subsequently fired as a result, but quickly found a job at another hospital. Physician accusers were also forced at trial to admit that they had been “careless with the truth.” Although they accused me of “having the highest complication rates and hospital stays, and death and infection rates,” the
hospital’s own computer data showed the opposite. My statistics were far better than those of my accusers. “It is so, because I say it is so” just didn’'t pass muster in the courtroom, where actual evidence was required.
The outcome of the case was to block an unfavorable decision from the hospital peer review committee and to award me a $559,000 judgment against the hospital for slander. Although I remained on the hospital’s medical staff, the damage to my reputation remained largely unaltered. Half the doctors at the hospital still thought that I was a “bad doctor” and had won only because I had a sharp lawyer. A state accreditation committee also looked at the 75 last-minute charges brought by my accusers and found that my care was commendable in those cases.
Getting a judgment and actually collecting the judgment are two different matters, of course. As a victim of sham peer review, one often finds oneself in a high-stakes poker game with an opponent whose resources far exceed one’s own. The hospital can continue to raise the ante by pursuing appeal after appeal until the victim can no longer afford to play the game.
For the rest of the article, go to
www.jpands.org/vol8no3/waite.pdf
Due and full credit is given to the author Verner S. Waite, M.D. and to the Journal of American Physicians and Surgeons. Please notice that I am not a member of, and have no affiliation with, the Association of American Physicians and Surgeons. My only interest is focused on the article displayed herein, since it addresses a real problem in a superb manner.
Sham Peer Review:
Napoleonic Law In Medicine
Verner S.Waite, M.D.
Abstract
Professional peer review is intended to protect the public from incompetent or unethical practitioners. However, it could and often does remove the most honest, ethical, and competent physicians, to the advantage of unscrupulous competitors. The Health Care Quality Improvement Act (HCQIA), which was
enacted with the support of the American Medical Association, immunizes false testimony, thus allowing gossip to be converted into testimony and depriving physicians of independent judicial review. The accused physician is often ruined financially. The victim must pay his own legal fees, whereas his accusers are not
responsible for any legal fees, which are paid by the hospital. The National Practitioner Databank (NPDB) transforms “disciplinary” actions into a professional death sentence. The abuse of the process is, unfortunately, widespread.
“Off With His Head!”
My own experience with sham peer review began in 1979. As is true in many cases of sham peer review, the attack was initiated by jealous competitors who viewed a hospital computer printout and
discovered that I was doing approximately twice the volume that they were doing. Never mind the fact that I was going into the hospital, at hours when they would not, to take care of gunshot wounds and indigent patients. My numbers were larger, and they were intent on doing something about it. And thus the first attack
againstmewas launched.
The pretext concerned a 6-year-old boy who presented to the hospital at an inconvenient hour with an epidural hematoma (lifethreatening hemorrhage on the brain). I prevailed upon a neurosurgeon friend of mine to come into the hospital. I assisted him in the surgical evacuation of the hematoma, and the child’s life was saved. Although I was only the assistant surgeon on the case, competitors brought charges against me, accusing me of operating outside of my area of competence and expertise. My qualifications, however,
as assistant surgeon in this case included training at City Hospital where I did 19 emergency neurosurgical cases. And in this case, three neurosurgeons had refused to come in to the hospital to care for the comatose child before I was called. This was a true emergency, I responded appropriately, and the documentation in the chart was accurate and complete. As I soon discovered, however, truth is not an impediment to sham peer review.
The surgery department held a fact-finding meeting, which was tape recorded, and two nights later a formal peer review hearing was conducted. Since the tape was favorable to my case, the hospital CEO ordered it to be destroyed. I continued to obtain appropriate consultations when needed, and my privileges remained intact. But this was only the beginning. Other charges soon followed. Attackers coordinated their lies and stories, and it was open season again. Often the only evidence they could offer was “it is so because I say it is so… off with his head!” It was a collaboration between Alice in Wonderland and prestigious purveyors. The charges against me were mounting, and the predators were moving in for the kill.
Fortunately, at that time there was no immunity for peer reviewers who offered false testimony. Therefore, I filed a lawsuit against my attackers in 1984 ( ). Peer review documents were also discoverable and admissible in court at that time. This is no longer the case, purportedly to protect the confidentiality of the accused, although the actual effect in most cases is to protect the accusers. Although the trial itself involved only six cases, an additional 75 charges were made against me only two months before trial. This is a typical tactic used by sham peer reviewers to bolster their case and to intimidate the victim. Some of these cases also involved situations in which I was not the physician of record – another common tactic used in sham peer review. At trial, the judge ordered the hospital to produce a transcript of the exculpatory tape that the hospital CEO had ordered to be destroyed. The hospital’s copy of the transcript was twelve pages long. The one that I was given was only two pages long. Both the judge and jury noted this glaring discrepancy. Blatant inconsistencies were also noted in testimony provided by many of my accusers. In pretrial deposition and also at trial, the hospital administrator admitted to knowing that the case against me was based on lies.
The hospital CEO was were subsequently fired as a result, but quickly found a job at another hospital. Physician accusers were also forced at trial to admit that they had been “careless with the truth.” Although they accused me of “having the highest complication rates and hospital stays, and death and infection rates,” the
hospital’s own computer data showed the opposite. My statistics were far better than those of my accusers. “It is so, because I say it is so” just didn’'t pass muster in the courtroom, where actual evidence was required.
The outcome of the case was to block an unfavorable decision from the hospital peer review committee and to award me a $559,000 judgment against the hospital for slander. Although I remained on the hospital’s medical staff, the damage to my reputation remained largely unaltered. Half the doctors at the hospital still thought that I was a “bad doctor” and had won only because I had a sharp lawyer. A state accreditation committee also looked at the 75 last-minute charges brought by my accusers and found that my care was commendable in those cases.
Getting a judgment and actually collecting the judgment are two different matters, of course. As a victim of sham peer review, one often finds oneself in a high-stakes poker game with an opponent whose resources far exceed one’s own. The hospital can continue to raise the ante by pursuing appeal after appeal until the victim can no longer afford to play the game.
For the rest of the article, go to
www.jpands.org/vol8no3/waite.pdf
Due and full credit is given to the author Verner S. Waite, M.D. and to the Journal of American Physicians and Surgeons. Please notice that I am not a member of, and have no affiliation with, the Association of American Physicians and Surgeons. My only interest is focused on the article displayed herein, since it addresses a real problem in a superb manner.
Quality Management Addressing Health Care Concerns in Canada, Australia & UK
I found this gem doing a google search at link: http://myweb.dal.ca/mgoodyea/files/concernsinhealthcare.doc.
I could not locate the name of the author to whom full credit should go. Any claimers welcome on the comments section. Thanks.
CONTENTS
Introduction. 3
Canada. 3
Appraisal 5
Complaints. 5
Case Study: Dr Nancy Olivieri 6
Defending Medicine. 7
United Kingdom.. 8
Supporting Doctors, Protecting Patients. 9
The Problem.. 9
Recommendations. 11
Response. 13
Implementation. 13
Identifying problems with a doctor’s practice and putting things right 14
Clinical Governance. 16
Subsequent events. 17
NHS Guidances and Directives. 18
Doctors' and dentists' disciplinary framework: introduction and explanatory note. 18
Action when a concern arises. 19
Restriction of practice and exclusion from work. 20
Guidance on clinical academics. 22
National Clinical Assessment Authority (NCAA) 23
NCAA Toolkit 23
Managing. 24
Alerting. 25
Investigating. 25
Rebuilding. 26
Discipline. 27
Support 28
NCAA Research. 28
Auditor General’s and Committee of Public Accounts Reports. 33
Case Study 1: Wendy Savage. 34
Case Study 2: Bristol Royal Infirmary. 37
Australia. 43
Case Study: Walker Inquiry. 43
Conclusions. 44
Appendix I: Selected Quotations. 46
Appendix II: Supplementary papers. 51
Introduction
Recently, and understandably, there has been a great deal of public interest and concern[1] about a series of closely related issues, regulation of health professions, medical errors[2] and patient safety, and continuing quality improvement. Regulation and evaluation should meet a dual role, that of protecting and reassuring the public as to the maintenance of standards, and reassuring and supporting the professions as to the quality of care delivered.
An aspect of this that has been relatively overlooked and not yet integrated well into the overall picture has been the way in which health care systems handle problems, all too often by dealing with the aftermath and not the cause.[3]
This paper attempts to summarise our current understanding of these issues, illustrated by what we know about the evolution of concepts in selected countries, and by selected case studies from those countries.
Canada
In Canada, despite the fact that performance evaluation and correction is appropriately embedded in the rhetoric of patient safety and quality management, no formal national approach to this has been addressed, being left instead to Provincial licensing authorities.
2002 was a watershed year for patient safety with the report of the National Steering Committee on Patient Safety. In ‘Building a Safer System’ we find reference to the need to “Develop and implement responsive patient-focused programs for the receipt, review and management of concerns within health-care organizations.”[4]
The document also addresses the need to “Develop a greater focus on improvement through education and remediation, vs. blame and punishment, in legal, regulatory and human resource processes”[5].
In addressing the overall question, one of five working groups was assigned to the legal and regulatory questions: ‘How can the manner in which the regulation and monitoring of health-care professionals and their institutions, and the legal systems, improve safety?’
One of the incidental recommendations was the rejection of the term ‘medical error’ as being associated with a ‘culture of blame’.[6] The overarching conceptual model[7] saw the legal and regulatory processes as but one ingredient of an integrated system, which included measurement, evaluation, education and communication. However the emphasis in this group was on tackling a legal and regulatory environment that perpetuates fear of blame and litigation[8], rather than on monitoring and correction.
Although recommendation 5[9] focuses on the management of concerns, it is from the vantage point of complaints from patients and families (patient focused) about adverse events. However it recognised the need for an open culture and resolution in contradistinction to an adversarial system based on punishment and isolation. It noted that the current system does not encourage discussion of issues, due to a perceived burden of ‘perfection’. The preferred culture is described as one of safety[10]. However in terms of ‘non-punitive’ reporting, the emphasis would appear to be on the reporter rather than on the reported, which seems unbalanced.
Regulatory bodies are seen as involved in a search for and need to cull ‘bad apples’ rather than stressing education and remediation. The preferred system is based on continuous improvement and learning (sometimes referred to as a culture of learning).
The second recommendation dealing with legal and regulatory issues is number 8. In this, regulatory bodies are still seen as having the responsibility for evaluation and addressing competence and performance, and correction of ‘incompetence’.[11] Although restrictions on practice and withdrawal from practice are visualised as remedies, the preferred approach is stated to be identification and remedy of underlying problems.
‘Building a Safer System’ recognised the potential for devastating consequences to the individual resulting from hearsay or premature conclusions based on inadequate information and urged effective peer review.
The outcome of this, as in many other countries, was the establishment of the Canadian Patient Safety Institute[12] in 2004.
Little is known about the management of concerns and complaints in Canada, other than a few well publicised cases, usually at the level of Provincial College proceedings, often involving sexual offences or fraud. The CMPA has a database of legal actions and disciplinary proceedings. There has been debate as to whether this should be made available for research.[13] CMPA records reveal 200-300 cases per year involving physician’s hospital privileges.
Canada has had its own version of the Bristol Royal Infirmary (see Case Study) paediatric cardiac surgery tragedy in Winnipeg,[14] and similar issues around accountability and blame have come to light. As a CMAJ editorial at the time, states;
“It is always easier to find a scapegoat than to change the culture of a working environment. But we must find the resources and muster the personal resolve to look at what we do in a systematic way, prospectively as well as retrospectively, expecting errors and developing non-blaming mechanisms for preventing them.”[15]
Appraisal
A framework for physician appraisal has been in existence in Canada since 1993 in the capacity of the Federation of Medical Licensing Authorities of Canada[16] and its Model for Monitoring and Enhancement of Physician Performance (MEPP).[17] The underlying philosophy being changing the emphasis from blame to quality improvement and learning. A series of workshops on these topics (the Aylmer Workshops) were held over 1994-2000.[18] One of the limitations is that these concentrated on the role of Provincial licensing authorities as opposed to health care systems internal disciplinary procedures.
Regional assessment programmes have been developed in Alberta, Ontario[19] and the Atlantic (Atlantic Provinces Medical Peer Review Program), established in 1993.[20] A related programme in Alberta is the Physician Achievement Review programme which seeks feedback from health care consumers and colleagues about physician performance.[21] Nova Scotia started its own peer assessment process at the beginning of 2005 (NSPAR)[22],[23] based on the Alberta model. At present this is limited to primary care.
Complaints
Meanwhile Provincial Colleges are actively exploring alternative less adversarial or punitive approaches to resolving complaints.
“The College approaches complaints about physicians as problems to be solved.
A complaint may provide the opportunity for a physician to change behaviour, or to improve some aspect of practice. In some instances…assessment and retraining may be required. Our experience is that the best outcome happens when the physician is a willing participant in the complaint process. …
We prefer to work with the physician to identify the problem and to work towards a solution. We believe that the chances of long-term success with this approach are much higher than if disciplinary action is taken – action that may, in fact, be counter-productive to creating a positive change in physician behaviour.[24]”
And moving from a reactive complaint process to a preventative approach
“We are changing the way the College currently monitors the performance of physicians. Specifically, we are moving from a reactive complaints and discipline model, to one which seeks to better guide the profession and prevent practice problems. The College wants to help physicians before any bad habits become entrenched into daily practice.”[25]
Case Study: Dr Nancy Olivieri
The inquiry which has created the greatest public interest in Canada is the Olivieri Report.[26],[27],[28] A Toronto paediatric haematologist found herself in conflict with the commercial sponsor of a trial she was conducting. She was dismissed from her position, referred to her hospital’s internal disciplinary committee (Medical Advisory Committee), and then referred to the College of Physicians and Surgeons of Ontario’s Disciplinary Committee for misconduct, who cleared her of the charges. Ultimately she was reinstated, and her main accuser was actually the one who was ultimately disciplined by the College.[29]
The case raised many questions about the relationship of institutions, investigators, research oversight and commercial interests, about academic freedom, and the interaction between universities and health care organisations.
In its recommendations the Independent Committee of the Canadian Association of University Teachers[30] addressed the need for clinical academic staff to have equal access to grievance and arbitration procedures as their non-clinical colleagues, and that Medical Advisory Committee and Board decisions be subject to such procedures. It also addressed the need for due process in disciplinary procedures and for the above to be incorporated into affiliation agreements between universities and teaching hospitals.
In an editorial at the time, the Canadian Medical Association Journal recommended that in future such matters be investigated by independent committees.[31] The many issues raised by these events continue to ricochet not only in Canadian but international medical circles, and even a novel.[32]
“In failing...[her] when she needed them most, it is now clear that some members of the University’s Faculty of Medicine heard her muffled cries of academic freedom from the back room, yet their response was to serve another round of drinks and turn the music up louder.”[33]
Defending Medicine
In the wake of the Olivieri affair, CAUT’s Academic Freedom Committee set about addressing the broader issues of the interface between universities and teaching hospital in dealing with clinical academic staff. A position paper on joint appointments was released in 2002[34] enshrining the relevant recommendations from the Olivieri report.
At the same time a Task Force on Academic Freedom for Faculty in University-Affiliated Health Care Institutions was established to undertake a wider inquiry and its report was released in November 2004.[35]
In essence this noted widespread vulnerability and abuse, and in particular the use of termination and control of revenue to enforce social and academic acquiescence. It again stated that clinical academic staff must have the same rights and privileges as non-clinical academic staff. In particular it noted the need for security in terms of employment and income, and the triple jeopardy faced by the intermingling of university, hospital and practice plan personnel.
Disciplinary bylaws usually lack access to natural justice and procedural fairness, in striking contrast to grievance arbitration.
United Kingdom
While a number of countries including the United States, Australia, New Zealand and the UK have undertaken similar initiatives, only the UK has undertaken a radical overhaul of its procedures for dealing with concerns in the health care system.
These reforms followed a series of well publicised events and inquiries[36], including the events leading to and following the Beaumont (London 1986), Griffiths (North Staffordshire 2000)[37], Ritchie (Kent 2000)[38], Alder Hey (2001)[39] and Kennedy (Bristol 2001)[40] inquiries. Another stimulus was a report of the Committee of Public Accounts of the House of Commons in 1995.[41] These various inquiries and reports made sweeping recommendations for reform.
Concerns at an administrative level surfaced in 1994 with Donaldson’s analysis of and description of the inadequacies of the existing system.[42] He described the experience of one Health Authority where serious allegations arose in 6% of the workforce, delineating the areas of concern and outcomes. Approximately half of the doctors returned to the workforce. Suspension was rarely used[43], retirement being used more commonly to resolve intractable problems. Referral to the General Medical Council was also rarely used. Donaldson pointed to proposed reforms by the Council which would shift the emphasis from punishment to remedy.[44]
Another pressure on the system came from the Society of Clinical Psychiatrists which formed a study and support group on suspensions and suspended doctors, and produced two reports (1990 and 1999) describing the practice as ‘shocking’ and ‘a blot’.[45] They showed that less than a third of cases involved allegations of professional incompetence and that only 10% of allegations were found to be justified. They commented on the severe health problems that ensued in the suspended physicians. Tragically three of 171 suspended physicians died as a result of the suspension.[46]
Supporting Doctors, Protecting Patients
In 1999 the English Department of Health released a consultation paper: ‘Supporting Doctors, Protecting Patients’[47], under the framework of improved Clinical Governance (see below under implementation) and quality improvement (similar papers followed in Scotland[48] and Wales).
The Problem
The paper recognised the ‘legalistic inflexibility’[49] of the existing system of dealing with concerns about individual performance, and set out to develop a concept that was ‘supportive and preventive’. In doing so it recognised that when problems had come to light in the past they often revealed chronic system failures, and therefore sought to be proactive rather than reactive.[50] Amongst the recommendations were that assessment should be performed at a distance, should not be precipitate, and should be beware of those who seek to create inaccurate scenarios.
Interestingly, while identifying well documented failures it only briefly alluded to instances where subsequent inquiries revealed that the alleged concerns had no substance[51], like the Beaumont inquiry[52]. A subsequent report by the National Audit Office (NAO) has addressed this.[53]
Three essential components were identified; prevention, recognition, and correction[54]. These were depicted as ‘an alternative to disciplinary action’[55]. It also recognised the need to move in tandem with professional associations and licensing authority (General Medical Council), and professional self-regulation in general[56] as part of a framework of the ‘delivery of quality patient services”.[57]
Amongst failures identified in the existing systems were local solutions without system-wide approaches incorporating learning, and a failure to incorporate Human Resources principles, resulting in unfair, costly and cumbersome procedures, instead of providing a transparent atmosphere for discussing performance and concerns, and the provision of professional development and support[58]. It was hoped that this approach would greatly diminish the number of disputes, and actual incidents of patient harm. All too often performance issues were seen as ‘punishable offences’.
A recurring theme running through all these inquiries and [59]reports was that of system wide failure;
“Nevertheless, sometimes the failure may not be wholly attributable to one individual but may be symptomatic of organisational malaise. In determining remedial action, organisational factors need to be taken into account.”
At that time it was estimated that about 6% of the senior workforce were having problems, and about 5/10,000 (0.05%) doctors were under suspension. Doctors at every stage in their career can exhibit significantly higher levels of psychological disturbance than those found in equivalent professional occupations[60]. Health problems range from anxiety, emotional exhaustion to clinical depression and suicide. In some groups these problems are associated with addiction (e.g. alcohol and drug misuse) and with a lower standard of patient care. Moreover, many doctors are reluctant to admit that they are sick, and may self-prescribe. Many physicians do not have regular family doctors. In 1998 a Nuffield Trust survey found that 25-50% of hospital workers exhibited psychological disturbance[61]. Similar figures have been reported amongst cancer workers in Canada[62],[63],[64],[65].
Therefore in conjunction with the new procedures being recommended would be measures to reduce stress in the workplace.[66]
While the General Medical Council (GMC) had procedures in place for dealing with performance concerns, it was considered that referring all cases was impractical due to ‘the volume of such cases’ and that furthermore this would represent ‘an inappropriate abrogation’ of the health authorities’ ‘proper role as employers’ as well as introducing impractical delays.
Cumulative costs to the National Health System in England in 1999 of suspensions lasting more than 6 months was estimated as over £2,500,000[67].
The report was also acutely aware of the potential for abuse of the performance review system by unwarranted allegations[68], and recognized the considerable damage that can occur. Whether the allegations were warranted or not the report recognized the debilitating effect of existing procedures including cost, morale of clinical staff, and burden on administrators. Perhaps most significant of all ‘the opportunity for re-education or improvement is then often permanently lost.’[69]
Recommendations
In developing a quality framework[70] the report recognized that key elements must include the development of agreed standards and a monitoring system to ensure that the standards are being delivered. Theoretically this should result in early detection in changes in quality at various levels of the organizational structure and the opportunities for early correction. It emphasized the need for all levels of organizational structure to take responsibility for quality and performance within their area of responsibility.[71] This is in contradistinction to less efficient systems based on complaints and incidents.[72]
Mechanisms to achieve this include Continuing Professional Development (CPD) and Clinical Audit. Inherent in this is appraisal, both self and peer originated.[73] It is stressed that
“Appraisal is a positive process to give someone feedback on their performance, to chart their continuing progress and to identify development needs. It is a forward looking process essential for the developmental and educational planning needs of an individual. Assessment is the process of measuring progress against defined criteria… It is not the primary aim of appraisal to scrutinise doctors to
see if they are performing poorly but rather to help them consolidate and improve on good performance aiming towards excellence..”[74]
This in turn demands that methods of appraisal be valid and understood, and that those involved in appraisal be adequately trained in its execution.[75]
In proposing remedies as to how concerns when raised are dealt with, the report recommended an external source of support and assessment rather than highly variable local procedures, to provide a more neutral environment[76], free from acrimony. In particular it was stressed that a new mechanism must be integrated into the procedures of professional associations.[77]
Specifically it was recommended that a number of Assessment and Support Centres be established[78] to impartially advise employers on procedure and to provide an ‘environment supportive of the doctor undergoing assessment’. While it was envisaged that any new system would replace traditional disciplinary measures, it was also realized that some conduct issues (e.g. theft) would be more appropriately handled locally. Similarly although it was suggested that performance issues be handled by the Centres in liaison with the GMC, some issues of severe dysfunction would require early intervention by that body.
In terms of the operating details, it was suggested that where concerns arose ‘for which there was no immediate solution’, referral be without stigma[79], and occur without delay. Mechanisms would also be in place for self referral where appropriate.
In dealing with the issue of stigma it was stressed that ‘referral is not a disciplinary act. It would be exceptional for a doctor to be suspended prior to referral.’
It was proposed that suspension be reserved for
(i) physicians refusing referral
(ii) physicians referred back with intractable problems
(iii) imminent danger to patients
(iv) internal disciplinary procedures
Centres would judge the appropriateness of the referral, assess the situation and issue recommendations. Recommendations would be either[80];
(i) a return to practise, reassured
(ii) return to practise with monitoring by specific criteria
(iii) re-education or retraining and reassessment,
(iv) referral to the GMC for registration issues (imminent danger),
(v) referral for treatment,
(vi) referral back to employer, considered serious and intractable (termination or retirement)
There would also be scope for referral of the problem to the authorities because of serious organisational implications. In practice this referral was to be the Commission for Health Improvement[81]. Implementation would remain with the referring health authority.[82] And there would be a right of appeal. The centre would coordinate retraining or treatment. Doctors would remain on full pay.[83]
It was hoped that this process would reduce the need for legal involvement, and allow for the development of expertise in assessment.
Response
The Department of Health tabulated, summarized and circulated the nearly 400 responses to the Consultation Paper[84]. Responses were favourable in principle but differed on details. Respondents thought that the process should be more patient centred. It was felt there was a need for a separate process for teaching hospitals. There was strong support for making the process part of Continuing Professional Development, and not part of any disciplinary process. It was felt that assessment in the workplace itself would be useful in order to separate system failure from performance failure. (Some comments from those responses are appended below[85])
Implementation
Release of the responses was accompanied by an implementation paper[86] incorporating the consultation process. It appeared in the wake of a number of initiatives to develop standards and monitor performance of the NHS overall, including the establishment of a Commission for Health Improvement (1999), subsequently subsumed into the Healthcare Commission (2004), and the 1998 publication of ‘A First Class Service: Quality in the NHS’[87]. Another source was ‘An Organization With a Memory’[88] (2000) which identified that the system as a whole was failing to learn from adverse events and near misses in individual institutions, and led to the establishment of a national reporting system.
A further concept that was being developed was that of Clinical Governance[89]. Amongst the provisions of this programme was the idea ‘that all clinical staff take an active part in reviewing the quality of the services they provide and in planning ways of improving them.’[90]. Governance was based on the essential elements of clinical audit, the use of evidence-based practice, continuing professional development, risk management, early identification and remedy of performance and active working with patients and service users’. This concept is discussed in greater depth in the next section.
The report was therefore framed very much in the overall context of establishing and maintaining high standards. The work of the Commission for Health Improvement (CHI) had already indicated that both quality and the mechanism for ensuring high standards varied widely.
This report also launched the new authority, the National Clinical Assessment Authority[91]
to oversee the system. The foundation of the new system was Continuing Professional Development (CPD), appraisal and audit. This was seen as an inherent component of the recently introduced 5 yearly revalidation programme of the GMC.
In accordance with the guiding philosophy of support, a Clinical Governance Support Team[92] was created to assist implementation at the local level. A key element of Clinical Governance was the inclusion of patients in the process. Patient groups had input into the Supporting Doctors consultation.[93]
Identifying problems with a doctor’s practice and putting things right[94]
With regards to the specific issues of managing concerns, the final model for an assessment service was a flexible one based on local visits to minimize disruption and stigma. In keeping with lay input, the assessments “may involve gathering information on patients’ experience of the doctor’s service”[95].
In contrast to traditional problem solving;
“[The] Authority will endeavour to provide the doctor with a supportive environment while he or she is undergoing assessment, and will strive to be non-stigmatising. The focus will be very much on problem-solving, and where a problem with the doctor’s performance is found, …answering the question “what practical steps need to be taken so that this doctor can return to practice without risk to patients?”
Furthermore, to protect physicians a provision was included whereby a doctor would be able to seek the assistance of the Authority in situations where they were concerned that they were “the target of unjustified allegations”.
Funding would include the employment of locums as well as any expenses of subsequent education, training or supported practice.[96]
Provision was also made for the physician to respond to the assessment before a recommendation was made to the appropriate Health Authority. It was considered that the Assessment Centre would consult widely before making its report.[97] To improve efficiency, some of the responses to the consultation suggested a wider remit for the centers, including retraining for re-entry physicians.
An important distinction was made between ability, which references support, education and training, in distinction to conduct which addresses contract. Appropriate standards of conduct would include those of the GMC.[98]Cited examples included sexual assault, fraud and regularly failing to turn up for a ward round or outpatient clinic.[99]
It was realized that suspensions would still be necessary at the local level, not as “a punishment but a necessary tool to ensure quality of care and a level of protection to patients.” However it was also felt that such a circumstance should become increasingly rare. In entertaining such an eventuality it was hoped that
“Employers will need to consider whether it is in the interests of patients, the investigative process or the doctor themselves to suspend the practitioner during such investigations and to consider whether alternatives to suspension would be more appropriate. Once a practitioner has been suspended, it is essential that investigations are dealt with speedily. Employers must combine the responsibility to protect the interests of patients with that of ensuring their employees are treated fairly and with the minimum of delay.”
Other sections of Assuring the Quality of Medical Practice dealt with monitoring the quality of care provided by the system. A key element of this being the Commission for Health Improvement (CHI)[100]. CHI’s role was to review each health area on a regular basis, the frequency depending on initial findings and subsequent events, highlighting areas of concern and areas that were exemplary with the intention of the system gaining as a whole. Where serious concerns were identified, then more in depth investigations are performed. The other factor in this strategy was called Supporting Performance Improvement[101], in essence establishing an organizational performance assessment framework, supporting improvement and providing for flexible degrees of central control vs. local autonomy based on the indicators. A Modernisation Agency[102] was formed to ensure dissemination of best practices, support those areas most needing remedy and training in clinical leadership and overseeing clinical governance.
The final area of reform was professional self-regulation, essentially the work of the GMC.[103] The key element here was to deal swiftly and effectively with those circumstances where there was clear evidence of a danger to patients in terms of a doctor’s fitness to practice. This included widening the powers of the GMC to enable it to be able “to impose interim suspension or conditions quickly, to stop a doctor who represents a danger to patients from practising until his fitness to practice has been determined.”
As with other aspects of NHS reform there would be an emphasis on increased patient and public input, in addition to greater transparency and accountability. For greater efficiency the various health regulators, such as the professional colleges were brought under an umbrella of health regulation.
The NHS summed up the impacts of these changes on the profession in three ways:
“1. Competent doctors have much to gain from these initiatives – in particular the public will be reassured and give them the trust and respect their high quality practice deserves.
2. For the minority who fall short of the standard, these measures offer support and help to put things right where possible rather than a regime of punishment. The new quality programme offers far more relevant learning and development opportunities, tailored to their needs and to those of the service.
3. Only the tiny number who do not put patients at the centre of their practice have any cause to be concerned about these reforms. Unacceptable practice of this kind needs to be stopped, as the profession itself makes clear, for example in the GMC’s document Good Medical Practice.”[104]
Clinical Governance
The philosophy underpinning and permeating the entire process is that of Clinical Governance.
“A significant first step has been the introduction of clinical governance, which
promotes a culture of patient-centred, accountable, safe and high quality healthcare delivery in an open and questioning environment.”[105]
Based on the concept of Corporate Governance (Cadbury Report)[106] and later extended to the public service, this concept came to light in the NHS in 1998 in Scally and Donaldson’s classic paper (see introduction to Implementation above), and rapidly became the driving force behind reform. While incorporating an earlier concept from the World Health Organisation and the literature on quality improvement.[107] It came to mean not only defining a culture but changing a culture. The resonance is not only organizational wide, developmental and accountable but positive in connotation.
All too commonly organisations have focused on, or have been focused on, monumental failures, with little transfer of information good or bad to the totality of the system. That is, there was an absence of a commitment to learn.
What distinguishes systems that work from systems that fail is their culture. A culture of continuous quality improvement is a culture of evaluation and learning. One in which there is an open and participative working environment where ideas are shared and where positive attributes are valued, and blame avoided. Where there is a commitment to make things better. Where boundaries and hierarchies are minimized, and authority is based on wisdom rather than by virtue of appointment. Health care systems have been characterized by a lack of expectation of leadership skills, and by competition rather than collaboration.
In a learning culture neither clinical nor management decisions can be based on opinion alone. All too often innovation or failure occur in system silos. Cultures of excellence not only value their workforce but let them know they are valued.[108]
Many of these concept and values exist in workforces but usually in a sporadic and fragmented manner rather than as a systematic philosophy and cohesive concept of management.
Subsequent events
The main developments since the publication of Assuring Quality in Medical Practice have been the Guidances from the NHS Executive, reports from the National Clinical Assessment Authority (NCAA), and the reports of the Auditor General and the Public Accounts Committee.
In addition, the background of evolving understanding of specific inquiries has had a profound effect on thinking in this area, particularly those into the Bristol Royal Infirmary[109], and Dr Harold Shipman.[110]
NHS Guidances and Directives
Current procedures for the management of discipline and suspension are laid out on the Department of Health’s website as Doctors and Dentists: Discipline and Suspension.[111] This has evolved piece by piece and was completed in February 2005 as Maintaining high professional standards in the modern NHS: Doctors' and dentists' disciplinary framework.[112]
This has a number of components:
Doctors' and dentists' disciplinary framework: introduction and explanatory note[113]
This introduces the system which came into force on April 1st 2004 for dealing with issues when they arise. By that time the NCAA had managed to find alternative solutions to 85% of the suspensions requested by health authorities. It directed that the word ‘suspension’ be no longer used other than for those instances where the GMC suspends a doctor’s license. This has been replaced by ‘exclusion from the workforce’.
It set out four key elements:
(i) Appraisal and Revalidation: giving ‘doctors an opportunity to reflect on their practice and discuss, with a suitably trained and qualified appraiser, any issues arising from their work, and their development needs’;
(ii) The role of the NCCA in reducing ‘the need to use disciplinary procedures to resolve problems’;
(iii) ‘Tackling the blame culture - recognising that most failures in standards of care are caused by systems' weaknesses not individuals per se’;[114]
(iv) ‘Abandoning the "suspension culture" by introducing the new arrangements for handling exclusion from work.
In terms of process, it recognised that the most essential element was ‘a co-ordinated process for handling concerns about the safety of patients posed by the performance of doctors and dentists’
“Whatever the source of this information the response must be the same - to ascertain quickly what has happened and the reasons; to determine whether there is a continuing risk; to decide whether immediate action is needed to remove the source of the risk; and to put in place action to tackle any underlying problem.
Under these new mechanisms, exclusion from work must be used only in the most exceptional circumstances. Exclusion of a practitioner is not a solution in itself. Furthermore periods away from work will be kept to the minimum through strong performance management arrangements which will ensure that progress is maintained and frequently reviewed. The exclusion will lapse and the practitioner will be entitled to return to work if the exclusion is not actively reviewed.”
Specific details are set out in accompanying documents.
Action when a concern arises[115]
The first part addresses the mechanism for dealing with concerns or allegations. In doing so it explicitly recognises that the potential for harm and the possibility of error in raising such issues.
“Unfounded and malicious allegations can cause lasting damage to a doctor's reputation and career prospects. Therefore all allegations, including those made by relatives of patients, or concerns raised by colleagues, must be properly investigated to verify the facts so that the allegations can be shown to be true or false.”
A case manager is appointed, and liaison is maintained with both NCAA and GMC. In many cases NCAA involvement is informal and advisory with the intent of avoiding more formal proceedings, but includes performance assessments where appropriate. An important aspect of this is distance from the events;
“The first stage of the NCAA's involvement in a case is exploratory- an opportunity for local managers to discuss the problem with an impartial outsider, to look afresh at a problem, see new ways of tackling it themselves, possibly recognise the problem as being more to do with work systems than doctor performance, or see a wider problem needing the involvement of an outside body other than the NCAA.”
A local case investigator will then conduct an inquiry over a maximum period of four weeks to decide on appropriate action, such as referral to an outside body. One reason why the NCAA strives to avoid exclusion is that;
“because it is much more difficult to assess a doctor who is excluded from practice than one who is working.”
Restriction of practice and exclusion from work[116]
The second part deals exclusively with those cases where some degree of patient protection is thought to be necessary, no matter how temporary. The key elements are;
(i) ‘exclusion from work is used only as an interim measure whilst action to resolve a problem is being considered’;
(ii) ‘where a practitioner is excluded, it is for the minimum necessary period of time: this can be up to but no more than four weeks at a time.’
“When serious concerns are raised about a practitioner, the employer must urgently consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the practitioner from the workplace.”
“Exclusion of clinical staff from the workplace is a temporary expedient. Under this framework, exclusion is a precautionary measure and not a disciplinary sanction. Exclusion from work ("suspension") should be reserved for only the most exceptional circumstances.”
“The purpose of exclusion is:
(a) to protect the interests of patients or other staff; and/or
(b) to assist the investigative process when there is a clear risk that the practitioner's presence would impede the gathering of evidence.”
“It is imperative that exclusion from work is not misused or seen as the only course of action that could be taken. The degree of action must depend on the nature and seriousness on the concerns and on the need to protect patients, the practitioner concerned and/or their colleagues.”
“Alternative ways to manage risks, avoiding exclusion, include:
· Medical or clinical director supervision of normal contractual clinical duties;
· Restricting the practitioner to certain forms of clinical duties;
· Restricting activities to administrative, research/audit, teaching and other educational duties. By mutual agreement the latter might include some formal retraining or re-skilling.
· Sick leave for the investigation of specific health problems.”
While allowing for a maximum period of exclusion of four weeks, the directive recommends “An initial ‘immediate’ exclusion of no more than two weeks if warranted.”
Any proceedings are subject to Chapter VI of the Charter of Fundamental Rights of the European Union[117]
Exclusions are also subject to a number of considerations. The first deals with the extent to which exclusion can fairly be taken:
“Practitioners should not be automatically barred from the premises upon exclusion from work. Case managers must always consider whether a bar from the premises is absolutely necessary. There are certain circumstances, however, where the practitioner should be excluded from the premises. This could be, for example, where there may be a danger of tampering with evidence, or where the practitioner may be a serious potential danger to patients or other staff. In other circumstances, however, there may be no reason to exclude the practitioner from the premises. The practitioner may want to retain contact with colleagues, take part in clinical audit and to remain up to date with developments in their field of practice or to undertake research or training.”
A second consideration dealt with availability for work, pay and the need for continuing professional development:
“As exclusion under this framework should usually be on full pay, the practitioner must remain available for work with their employer during their normal contracted hours….arrangements to ensure that the practitioner can keep in contact with colleagues on professional developments, and take part in Continuing Professional development (CPD) and clinical audit activities with the same level of support as other doctors or dentists in their employment. A mentor could be appointed for this purpose if a colleague is willing to undertake this role.”
While four week exclusions can be renewed, each renewal requires a formal process with identified steps to be taken at the end of 8 and 12 weeks, and no exclusion was to last more than 6 months other than where criminal investigations were involved.
In an accompanying agreement with the British Medical Association[118] it is stressed that:
“The focus is on helping doctors and dentists to keep up to date and to practice safely, not to punish them for any problems with clinical performance.”
Subsequent parts deal in depth with the conduct of hearings and disciplinary matters (Part III), procedures for dealing with issues of capability (Part IV); and handling concerns about a practitioner’s health (Part V).
Guidance on clinical academics
Finally the universities had made representations for special considerations for academic staff based in teaching hospitals. The Follett Report[119] arose from the Alder Hey inquiry. Drawing on a number of recent examinations of the role of academic staff, including the Nuffield Trust and Richards reports, Follett sought more explicit definition of accountability and appraisal given ‘the peculiar problems faced by clinical academics who appear to have two posts with separate employers and yet actually have a single professional job.’[120] It emphasises the need for a clear, harmonious and consistent framework from selection and appointment, accountability, appraisal, to the workings of any disciplinary process ‘that a clinical academic post is a single job held by a whole person, not two jobs held by two different half persons in one body’.[121]
One of the concerns expressed from the respective priorities of teaching hospitals and universities was that ‘there is a very real risk that the pressures of service delivery … and of the delivery of education and research on universities will result in them growing further apart.’[122]The authors noted that ‘the lines are traditionally blurred and the priorities interwoven.’ However they were very much aware that different facets of the employment responsibility were subject to different lines of accountability (clinical service, teaching and research).
Appraisal and performance review are at the heart of the document.[123] While there was agreement on a single appraisal process it was felt this should be a joint university/hospital function. With regards to disciplinary procedures[124], as with appraisal, the emphasis is on managing helping and remedy, rather than formal discipline. Interestingly they suggest abandonment of older concepts of personal and professional or personal misconduct, in favour of appraisal of health, conduct and capability. It was envisaged that both parties would be intimately involved in all aspects of the process.
Amongst their recommendations in this regard[125]were
“that the university and NHS body must establish absolutely clear and documented arrangements for dealing with the management of poor performance and for disciplinary matters of all types…Universities and NHS bodies should jointly prepare a formal agreement on the procedures for the management of poor performance and for discipline to be followed for senior NHS and university staff members with academic and clinical duties. As a minimum, these procedures should ensure joint working in the process from the time implementation of it is first contemplated; specify which body is to take the lead in different types of case; ensure suitable cross membership of disciplinary bodies; and be expeditious.”
Although the authors touched on grievances as an issue requiring joint management they did not offer any specific recommendations. With regards to implementation, they suggested a joint action plan between government departments of education and health.
As a result of this the Department of Health developed a separate framework for academic clinical staff[126], which essentially recognised the rights of both parties (universities and hospitals) to be engaged in any proceedings against a member of the staff.
National Clinical Assessment Authority (NCAA)
Established in 2001, the NCAA’s mission statement includes:
“Promoting the development of local and national procedures for preventing, identifying and resolving performance problems
Assessing individual doctors and dentists, and recommending practical ways in which their performance can be improved”.
NCAA now has experience of managing over 1,000 cases (1% of the workforce).[127] The sharing of good practice from across the system and an educational component including a web based toolkit are directed towards a goal of helping institutions ‘not to need us’. Only 6% of referrals required assessments. In 30% of exclusions in place at the time of referral, NCAA found there was no basis for this. Case studies included in their annual reports include providing support to overworked doctors, helping with interpersonal skills, improving management support of physicians, and improving recognized training deficiencies. The overall approach being getting people back to work, and resolving differences.
NCAA Toolkit
In 2004, a dynamic online Toolkit was developed for training and assistance of management in preventing and assessing performance concerns.[128]
Managing
The Toolkit is based on the premise that few managers are likely to have the skills and experience to deal with these sorts of problems, and embeds them in sound management and human resources principles. Simply stated, these are that ‘management relies on persuasion rather than directives and power’ and that employees need;
“to be recruited and inducted competently, into properly-defined jobs, given regular constructive feedback, helped with difficulties, deployed to make best use of their skills and encouraged to develop further”.
The Toolkit uses many actual situations as examples and is linked to a large number of organisational, communications and management resources, and is based on psychological research into working interactions.[129]
The Toolkit provides an excellent overview of leadership skills, team function[130] and personal and group development. One noteworthy observation is that sound human resources stewardship in health care systems is tied to clinical outcomes.[131]
“Team-working can improve service quality in many ways - even, in one study, reducing patient mortality. Yet caring for patients may not, on its own, be enough to make a group of people effective as a team. They need time to understand each others’ work methods and ways of thinking, away from patients and periodically outside the workplace as well.”
“Teams exist for purposes, one of which is quality assurance and performance management. The [organisation] needs everyone to take ownership of performance problems and contribute to solving them.”
The recommended approach places considerable emphasis on investing in people[132], coaching, mentoring and other supports. It identifies the organizational weaknesses which lead to conflict between colleagues and between clinicians and management;
“Some ‘performance problems’ have their origins simply in a clash of values between manager and clinician.”
stressing the need for clear, consistent and shared values[133], and suggesting constructive and proven means for resolving them, such as principled negotiation.[134]
“It must be clear that an organisation’s values statement is not just a PR device but a practical guide to decision-making.”
Alerting
The Toolkit also deals with ways of detecting problems, handling complaints and creating an open atmosphere in which concerns can be raised including situations where people who raise concerns about their own performance can be helped, and how to assist individuals with constructive feedback and guidance.
Investigating
In its guide to investigating concerns it draws important distinctions between asking a set of interrelated questions. What happened?, How did it happen?, Why did it happen?, and What might stop it happening again? Investigation is defined as ‘a careful search for the truth’ including determining the relevant components of system and individual failure. Initial questions might be;
“What has happened? What do we know? What else do we need to know to understand? Who is involved? Is there a continuing risk? Do we need to do anything immediately to protect patients? Do we need to involve anyone else?”
The GMCs Good Medical Practice[135] is suggested as a template. In considering possible causes for concerns, investigations routinely consider system problems, ill health, and victimisation and bullying.
“Differences in work style are normally expected by colleagues and tolerated. But sometimes a different style will attract criticism and come to be seen as a sign of poor performance. If the person first categorising performance as poor is influential, then others may take the same view.
Bullying can easily arise when people are intolerant and there is weak leadership. There is a large literature on bullying amongst health professionals, though this probably reflects growing awareness rather than increased occurrence… personality typing (perfectionism, self-criticism) also throws light on how colleague relationships can derail into victimisation and allegations of bullying when dominant or preferred work styles clash.”
This can be often unconscious. For instance enthusiasm can often make people around such a person feel demoralized.
Stress is placed on management having adequate training in investigative and interviewing techniques. In considering what actions might be taken, it is recognized that exclusion from work may sometimes be necessary as an interim measure in the interests of protecting public safety, but it is also pointed out that such circumstances are actually exceedingly rare.
Rebuilding
As with the spirit of the process, equal emphasis is placed on both investigation and rebuilding.
“People with skills are expensive to replace. It makes sense to try to rebuild a career rather than scrapping probably still useful experience, skills and knowledge. ‘Rebuilding’ accommodates many possibilities – rebuilding a career path, trust, a working relationship or a pattern of clinical practice. A suitable and effective performance solution might need all four.
…
If there has been a suspension or a breakdown in working relationships, re-entry into the clinical team will need to be planned and implemented. This is challenging work for managers. It may seem irritatingly expensive in training costs and management time, but it should still be cheaper than scrapping and replacing.
….
Rebuilding is right, humane and also required by the Code of Conduct for NHS managers which puts a duty on managers to help staff ‘maintain and improve their knowledge and skills and achieve their potential’. The Department of Health’s new framework for the handling of concerns about doctors and dentists also recognises the importance of ‘seeking to tackle performance issues through training or other remedial action rather than solely through disciplinary action’. The key questions for managers are therefore:
· Can an action plan be devised which will address the concern?
· Will the clinician cooperate?
…
As we are defining it, ‘rebuilding’ takes in all the processes needed to return a clinician to effective and safe working. These could include:
· Job adjustment - changes of duties, grading or specialty/sub specialty
· Additional training, probably supported by the local deanery and possibly with the relevant college, faculty or specialist society also giving advice
· Behavioural coaching, possibly with guidance from an occupational psychologist or other trainer
· Planned re-entry into the clinical team: organisational re-entry as distinct from clinical re-entry.
Putting together an action plan needs care and time, if it is to have the commitment of all parties.”
NCAA experience to date has shown that behavioural[136] as well as professional development is amenable to successful intervention;
“Behavioural coaching[137] is used widely for successful people – grooming managers for promotion, for example. One-to-one coaching for clinicians whose behaviour is causing problems can be just as valid an investment, though that is not to rule out simpler and cheaper solutions, such as shadowing. …One-to-one coaching sessions - possibly starting weekly and then reducing in frequency – can help an underperformer work through what has been going wrong and experiment with different behaviours. An external mentor could also be helpful, who need not be a clinician.
….
Group or team work may also be needed, with the clinician and immediate colleagues. As with other remediation elements outcome evaluation is essential, so negotiate that as part of the coaching package.”
Discipline
Recommendations for those cases that proceed on a disciplinary route, are that they follow ACAS[138] (Advisory, Conciliation and Arbitration Service) Code of Practice. These include the following principles;
· “Use procedures primarily to help and encourage employees to improve rather than just as a way of imposing a punishment
· Make sure that disciplinary action is not taken until the facts of the case have been established and that the action is reasonable in the circumstances
· Never dismiss an employee for a first disciplinary offence unless it is a case of gross misconduct
· Give the employee an opportunity to appeal
· Deal with the issues as thoroughly and promptly as possible
· Act consistently”
…..
“Where there appears to be serious misconduct, or risk to property or other people, a period of suspension with pay should be considered while the case is being investigated. This allows tempers to cool and hasty action to be avoided. Any suspension must be with pay unless the contract of employment allows suspension without pay, and any period of suspension should be as short as possible…..Do not use suspension as a sanction before the disciplinary meeting and decision and treat employees fairly and consistently.
…..
“Seek an external review if a disciplinary case is not concluded within [6] months. An external HR director might be asked to look at the case, for example.”
…..
“Recognise that events can move on and that formal disciplinary action, while initially appearing appropriate, may cease to be right. An alternative way of bringing the case to resolution must then be actively sought and found.”
Support
Finally the Toolkit draws attention to the responsibility to support physicians who have been made the subject of concerns. Reference is made to a NHS clinical practice guideline on psychological therapy and counseling in demonstrating benefit in terms of returning employees to work. Emphasis is placed on the difficulties involved in returning to the workforce after an absence, including a guidance on achieving this. The Royal College of Obstetrics and Gynaecology has also published a policy on this.[139]
NCAA Research
NCAA has commenced a number of important research projects into why things go wrong in health care and how to prevent and manage them. A new report released in November 2004, is ‘Understanding Performance Difficulties in Doctors’[140],[141] by Professor Jenny Firth-Cozens, which will be expanded into a book during 2005. The answers are not easy but complex, and are predicated on the fact that highly committed, conscientious, well intentioned and dedicated individuals run into problems for a variety of reasons, many of which are not of their own doing.
“Performance is affected by a complex interplay of personal and situational factors including organisational culture, physical environment, teamwork and leadership. Workload, sleep loss and shift patterns can all have a deleterious effect on clinical performance. Workload, for example, affects physical and mental ability in the form of decision making, attention span, fine motor control and level of motivation. Sleep loss increases the risk of human error and shift work can cause biological disruption which in turn may lead to impaired health and psychological well-being including ‘risky’ coping behaviours such as alcohol or drug misuse.”[142]
Taking the general principle that these are workplace issues, and therefore amenable to an occupational health perspective, these can best solved by into looking at the interaction between the individual and their environment.
They suggest 14 questions managers should ask to solve the problems of ‘Why did this happen?’ and ‘What interventions are appropriate?’, both at an individual and organisational level. These include evaluating physical health and disability, mental health, stress, life events, cognitive impairment, medications, substance use, personal characteristics, attitudes and behaviour, issues related to education and training, organisational culture, workload, team function, and leadership.
“We have provided an analysis of why the performance of a minority of doctors – intelligent individuals who have been sufficiently talented and motivated to complete demanding training and qualify as doctors – causes concern.”
The factors fall into three broad categories:
Individual factors
• Physical health
• Psychological health
• Cognitive function
• Personality, attitudes and behaviour
• Clinical knowledge and skills.
Factors associated with the work environment
• Teamworking
• Climate and culture
• Leadership
• Workload, sleep and shift-work.
Education, training and continuing professional development
• Selection of future doctors
• Undergraduate education
• Postgraduate training
• Continuing professional development (CPD).”[143]
In examining the role of the organisation in which the individual functions, the authors recognise that medicine is an environment associated with high levels of stress and burnout;[144]
“Organisational causes:
There is no doubt that the organisation plays a large part in the mental health of its staff.
Organisational causes of stress include all those which research shows lead to stress in workers in general: poor support from supervisors and managers; poor teamwork; lack of control over how the tasks are performed; overload and a lack of resources. Sleep loss has a significant effect in lowering mood. In addition, within medicine a major and increasing stressor includes a fear of making mistakes and of litigation and complaints. An organisational culture which is open and fair and where trust is high is likely to reduce this stressor.
Organisations may help to prevent high stress levels and promote mental health by good management practices and supportive cultures. The growing use of mentoring and coaching may also prove to have a preventive role.”…
“It is important that people and the way tasks are performed are not seen as problematic merely because they differ from those who are judging them. The Myers Briggs Type Inventory (MBTI) is a useful way of understanding normal differences which, used well, are necessary strengths in the workplace. When conflicts arise it is worth considering whether they are due more to different approaches and preferences of each party rather than the underlying personality of one. If overplayed, strengths can become problematic, but not irremediable. For example, confidence can become arrogance, diligence can become perfection and charm can become manipulation.”[145]…
“The evidence concerning culture, climate and organisational performance of hospitals is still largely indirect but is growing in strength. For example, there is some evidence concerning lower mortality in US hospitals which nurses perceive to be good places to work. ….
Also of growing importance, easier to measure, and likely to be affected by culture and leadership, are human resource management (HRM) practices. Studies outside health care have shown that better HRM practices are associated with higher levels of organisational productivity and effectiveness. Within health care there is a relationship between some HRM practices (such as the extensiveness and sophistication of appraisal, training and teamwork) and patient mortality.”[146] …
“A Culture of Safety
A safety culture is not separate from the general organisational culture but at its core. It involves fairness and openness, rather than blame, in dealing with adverse
incidents. The development of a safety culture requires trust and good leadership. Reliable organisations have the following cultural values:
Interpersonal responsibility
Person centeredness
Co-workers who are helpful and supportive of one another
Friendly, open and sensitive personal relations
Creativity
Goal achievement
Strong feelings of credibility and trust
Resilience.”[147]
…
“Can culture be changed?
Culture and climate can be changed when new leaders introduce different values and ways of working. The dramatic differences that result from external forces such as mergers show that cultural change is possible and can be remarkably fast. There is also evidence that culture can be extremely resistant to change during mergers unless work is specifically undertaken to improve it.”[148]
Despite the fact that most people who work in health care environments do so within various teams, to date there has been little data on how well teams function. However the data from the UK 2003 National Staff Survey of health care workers show that much less than half of them work in effective teams – those linked with productivity gains and service benefits.[149]
What are the key elements of an effective team?
“●Its task is defined and its objectives clear
●It has reasonably clear boundaries and is not too large (ideally fewer than 10 people)
●Its members know who leads it and the leadership is good
●There is participation in decision-making by all members, good communication, and frequent interaction between them
●It meets regularly to review its objectives, methods and effectiveness
●Its meetings are well conducted
●Its members trust each other and feel safe to speak their minds
●There is a shared commitment to excellence of patient care.”[150]
Group processes are well known to be powerful influences on individual performance. Effective teams function at a much higher level of quality care than any of the individuals within the team, and individuals in quality teams are significantly less stressed, which in itself is related to better patient care.[151]
Amongst those characteristics of teams that have been shown to impact most on individual performance are;
“●Diversity is important in teams, reflecting the complexity of service delivery and the heterogeneity of patients, and leading to better decision-making. However, diversity sometimes causes difficulties in the early days of team development
●Scape-goating – heaping onto one group member the problems of the team as a whole - is a well-established tendency of groups. Leaders and members need to be alert to this possibility or the real causes of poor performance may be missed
●The longer teams are together the better they perform, but this can be difficult for more transient members such as doctors in training
●Good leadership is essential to ensure that a team, and its individual members, perform well.”[152]
Our understanding of how leadership affects team function has also increased considerably.
“Leadership qualities affect the work of both the leaders themselves, and those whom they lead. When performance problems arise it is important to consider not only individuals’ characteristics and the context which may contribute to the problems, but also those of their superiors. There is growing evidence of direct and indirect links between the qualities of leaders and the quality of patient care. This occurs because leaders affect the performance of individuals and teams” [153]
Useful resources for clinical leadership have been gathered together in an NHS website.[154] Much of what we have to learn about optimizing the working environment in health care is simply a matter of testing and applying lessons learnt in the private sector.
In summary, the key elements are recognizing the roles of teams, organizational culture and leadership;
“The relative contributions of the individual practitioner and the environment in which he/she works should be taken into consideration when a doctor appears to be performing poorly.
Fewer patients die when they are looked after by well managed teams, which are also more cost-effective. The evidence points to the importance for patient outcomes of a culture that promotes patient safety. Effective leadership increases the performance of teams and reduces stress in team members. Teamwork, organisational culture and leadership can be improved by interventions to train and support leaders, and through team development and feedback.”[155]
Auditor General’s and Committee of Public Accounts Reports
Two subsequent reports investigated the situation from the perspective of public accountability.
The Comptroller and Auditor General issued his report in November 2003[156] which was followed by a report from the Committee of Public Accounts of the House of Commons in November 2004. [157]
The Auditor General’s office looked at exclusions from the work force between April 2001 and July 2002, and estimated the cost at ₤29 million for the 1,000 staff (0.14% of the workforce), not counting employment costs at full pay (₤11m), or settlement and retraining, in a total health budget of ₤55 billion While the terms of reference dealt primarily with the public costs, the report also addressed the human costs;
“there is also a loss of clinical skills as a result of the enforced absence, with staff being paid to stay at home and not normally allowed to treat patients. For the clinician, exclusion can result in reduced self-esteem and depression, and in some cases, the clinician may feel suicidal. The clinician's family can also be adversely affected. A number of clinicians never work again, even if they are exonerated by enquiries. Clinical staff may well have undertaken expensive training and, with shortages of many staff across the NHS, unnecessary exclusions or cases where clinicians consider they have been driven out of the health service are of concern, both in terms of personal fairness and equity, and waste of scarce resources.”[158]
These reports provide some perspective on progress and highlight ongoing problems. They also included a number of case studies. In looking at alternative actions to exclusion they noted;
“It may be possible to restrict some clinical activities, avoiding certain procedures or types of patient, whilst enabling an investigation to be conducted. Clinical staff may be able to undertake clinical audit or research activities, or attend training courses… A number of exclusions occur as a result of a breakdown in team working or personality clashes where there appears to be no risk to patients. Where there have been patient safety incidents, trusts have sometimes excluded clinicians despite evidence of systemic failures rather than individual shortcomings… [they] need to support excluded clinical staff to enable them to progress their continuing professional development. ”[159]
Amongst recommendations were involvement of the Royal Colleges in assessments, ensuring;
“systems are in place to provide support to staff so that they are successfully integrated back into clinical work…[and]…a support system for excluded staff which includes regular contact with a mentor to ensure their psychological well being is monitored and they have access to continuing professional development so their skill base is maintained.”[160]
In their sample some 40% of doctors and dentists returned to work. There was concern that management often acted in a ‘knee-jerk’ fashion without adequate inquiry.[161] In looking at the degree to which employers had followed government policies, they noted that another tool that employers had utilized were the services of another statutory authority, the Advisory, Conciliation and Arbitration Service (ACAS). Patient safety was not an issue in the majority of cases. In their interviews the survey team found employers frequently failed to adhere to best management practices. Nor did they find much evidence of management being held accountable, despite evidence of poor working relationships between management and medical staff.[162]
Many of these recommendations have now been incorporated into NHS policy.[163] However a year later the Committee of Public Accounts remained critical of the progress that was being made. It noted that under a system of government funded medicine, the Department of Health is effectively a monopoly employer, therefore ‘the burden of proof required to terminate a clinician’s contract on grounds of professional competence is high.’[164] In some workplaces the Committee were disturbed to note that there was effectively a ‘culture of fear’[165] not only among clinicians who felt victimized, but among those who had witnessed what had happened to colleagues who spoke out.
Amongst submissions to the committee was that of the Medical Protection Society, which defends doctors and which noted the devastating consequences of the use of exclusions.[166]
Case Study 1: Wendy Savage[167]
Mrs Wendy Savage was an obstetrician at the University of London, who had a somewhat controversial style. In particular she differed from many of her colleagues in championing minimum intervention in childbirth, and promoting vaginal delivery over caesarean section wherever possible. She was a strong patient advocate believing in patients making informed choices.
She had been appointed to her post in 1977. In 1983 a new, younger division head was appointed. During 1984 there were some disagreements between the two, and a colleague complained about the care of a patient. In 1985 her division head and the District Health Authority suspended her, based on what they considered to be incompetence, poor clinical judgement and exposure of patients to unnecessary risks and poor communication with colleagues such as to interfere with safe care. A court challenge was unsuccessful. Five cases were selected by the Health Authority as being representative of her practice, for criticism, however it acceded to a request for an inquiry to be in public.
Both sides retained expert witnesses who reviewed the cases with very different results. An external panel consisting of two obstetricians and a lawyer, was convened and conducted the inquiry in 1986. Her colleagues criticised her as defensive, and unwilling to accept fault, and to recognise concerns in others for patient safety. Because of the public nature of the inquiry, the subject of her practice, the nature of the controversy and the type of patients that she saw, the whole affair generated intense public interest with demonstrations, media coverage and questions in Parliament.
Later that year, the inquiry report was released. Essentially the panel concluded that there was no evidence of a systematic ‘aberration of clinical judgement’, although some decisions were described as being ‘close to the bounds of acceptable practice’. Nor did they find evidence of unacceptable exposure to risk. They found no evidence that the cases presented represented a pattern of unacceptable risk, and found evidence that when at fault, she willingly applied lessons learned to future practice. They found that Mrs Savage demonstrated an equal concern for patient safety as did her colleagues. The panel also rejected the allegation that she should be held personally responsible for all adverse events experienced by her patients, even when under the care of others. Nor did they find evidence that in her interactions with colleagues she endangered the delivery of safe care.
The Health Authority accepted to report and decided to reinstate her after a 15 month suspension. The Authority was, however left with the problem of trying to reintegrate a specialist into practice, following repudiation by her colleagues and superiors. They therefore appointed an advisory panel to “make recommendations on how professional working arrangements can properly be established within the department of obstetrics” the panel acknowledged that there “differences of opinion…about the emphasis given to various elements of acknowledged good practice” and that there had been a “breakdown in relationships”. The roots of this were considered to be that the division “lacked effective leadership and cohesion and a mechanism for resolving conflicts between colleagues”.
Noting that good practice requires “complete trust between the participants and at least a broad consensus on operational policies”, the panel concluded that the situation has arisen because “this broad consensus was missing and from a breakdown of trust between Mrs Savage and certain members of the team, particularly where her management of a complicated case has been unusual or unfamiliar”. It acknowledged that while, ideally, working arrangements should be resolved between professionals themselves “the situation in the obstetrics and gynaecology division has reached a point where the division itself cannot resolve its problems.”
The decision of the panel was to leave differences of opinion that might arise in future to an internal panel of specialists and the Dean, to resolve. It stated that consultants must adhere to joint policies and that in the situation where management might be considered unusual or unfamiliar, the consultant concerned would take personal and direct responsibility for the management. It suggested merging the division with another division “to give a wider perspective to its deliberations”. They also suggested that any “unresolved differences on clinical philosophy may be referred to the Royal College of Obstetricians and Gynaecologists” (which was represented on the panel). Finally it drew the attention of those involved to the professional ethic that “As required by the General Medical Council in its guidance to the profession, medical practitioners involved in these arrangements must refrain from depreciating the professional skills and services of others.”
The panel was realistic enough to note that “it may well take a little time to establish professional working relationships and the teamwork required. Success will require the sincere determination of all parties to work in harmony, with tolerance and respect for each other’s viewpoints. We trust that in the interests of the women of Tower Hamlets they will do so.”
It was decided that in was in the public interest to publish the report and the Health Authority’s response.[168] The Authority responded that it “requires the consultants in obstetrics and gynaecology and their colleagues to make working arrangements as recommended…within one week. The Authority appreciates the feelings of the consultants in this matter but asks them to find it in their hearts to make these arrangements in order to serve the local community”.
Mrs Savage returned to work, nobody left, and the affair became a national legend, particularly with regard to women’s right to choose. There continued to be considerable public comment on the flawed process which led a public body to expend large amounts of resources[169] on prosecuting what were essentially differences in opinion and personality.
As Savage herself put it “if we ignore the history of this affair we will be condemned to repeat it. Unless the fundamental issues are dealt with doctors who are guilty of nothing more than having a different approach from that of some of their colleagues will continue to suffer as I have done”.[170]
Mrs Savage has now retired and works as a screener for complaints to the GMC.
Case Study 2: Bristol Royal Infirmary
A new anaesthetist in the paediatric cardiac surgery unit in 1988 noted procedures that seemed unfamiliar to him and a higher operative mortality than he was used to seeing. Two years later he started to voice his concerns. The hospital admitted there were problems in 1995. In 1996 parents wrote to authorities asking for a review. Preliminary investigations in 1997 suggested that the mortality rate was exceptionally high. The CEO and the two surgeons involved were referred to disciplinary procedures. An independent inquiry was announced. In 1998 the three people charged with misconduct were found guilty and disciplined.
The Kennedy inquiry heard evidence between 1998 and 2001, and released its report in 2000[171]. Many recommendations were planned and implemented, and a formal response, ‘Learning from Bristol’ was published in 2002.[172] The implications of the inquiry continue to reverberate.[173]
While many were expecting a “stinging attack”[174] what emerged was a remarkable insight into where things go wrong in health care systems that has formed the basis for all subsequent inquiries. Unfortunately the immediate impact of the Bristol ‘scandal’ had been a sharp rise in disciplinary actions against doctors.[175] The Kennedy report helped to rebalance the perspective, marking a transition from a ‘culture of blame’ to a culture of understanding and learning.
The report’s summary addresses the fundamental issues;
“Synopsis
The story of the paediatric cardiac surgical service in Bristol is not an account of bad people. Nor is it an account of people who did not care, nor of people who wilfully harmed patients.
It is an account of people who cared greatly about human suffering, and were dedicated and well-motivated. Sadly, some lacked insight and their behaviour was flawed. Many failed to communicate with each other, and to work together effectively for the interests of their patients. There was a lack of leadership, and of teamwork.
It is an account of healthcare professionals working in Bristol who were victims of a combination of circumstances which owed as much to general failings in the NHS at the time than any individual failing. Despite their manifest good intentions and long hours of dedicated work, there were failures on occasion in the care provided to very sick children. ….
It is an account of a time when there was no agreed means of assessing the quality of care. There were no standards for evaluating performance. There was confusion throughout the NHS as to who was responsible for monitoring the quality of care.
It is an account of a hospital where there was a `club culture'; an imbalance of power, with too much control in the hands of a few individuals. …
And it is an account of a system of hospital care which was poorly organised. It was beset with uncertainty as to how to get things done, such that when concerns were raised, it took years for them to be taken seriously.[176] ….
The circumstances of Bristol, and the NHS, at the time, led to the system for providing paediatric cardiac surgery (PCS) being flawed. All of these flaws, taken together, led to around one-third of all the children who underwent open-heart surgery receiving less than adequate care. “[177]
This represented a fundamental shift from inquiries that allocated blame to those that sought an understanding, in order to reduce repetitive episodes.
“We adopt a `systems' approach to analysis, by which poor performance and errors are seen as the product of systems which are not working well, as much as the result of any particular individual's conduct.”[178]
Amongst the findings the report addressed the crucial functions of teamwork and leadership;
“We reach one conclusion which owes nothing to hindsight. There was poor teamwork and this had implications for performance and outcome. The crucial importance of effective teamwork in this complex area of surgery was very widely recognised…. All the professionals involved in the PCS service were responsible for this shortcoming. But, in particular, this poor teamwork demonstrates a clear lack of effective clinical leadership. Those in positions of clinical leadership must bear the responsibility for this failure and the undoubtedly adverse effect it had on the adequacy of the PCS service.”[179]…
“What was unusual about Bristol was that the systems and culture in place were such as to make open discussion and review more difficult. Staff were not encouraged to share their problems or to speak openly. Those who tried to raise concerns found it hard to have their voice heard…. there was power but no leadership. The environment was one in which problems were neither adequately identified nor addressed.”[180]…
“We cannot say that the external system for assuring and monitoring the quality of care was inadequate. There was, in truth, no such system.”[181]
The guiding principles on which recommendations were made included;
“· Patients must be at the centre of the NHS, and thus the patient's perspective must be included in the policies, planning and delivery of services at every level.
· The dedication and commitment of NHS staff is and must remain at the core of the service.
· The quality of healthcare must include all aspects of care: clinical and non-clinical.
· Patients' safety must be the foundation of quality.
· Systems of care, and facilities, as well as individuals, affect the quality of healthcare.
· Learning from error, rather than seeking someone to blame, must be the priority in order to improve safety and quality.
· Openness and transparency are as crucial to the development of trust between healthcare professional and patient, as they are to the trust between the NHS and the public.”[182]
Amongst the many recommendations were;
“Safety: …For the future, the NHS must root out unsafe practices. It must remove barriers to safe care. In particular, it must promote openness and the preparedness to acknowledge errors and to learn lessons. Healthcare professionals should have a duty of candour to patients. Clinical negligence litigation, as a barrier to openness, should be abolished. Safe care should be promoted[183]….”.
“The culture of the NHS
The culture of the future must be a culture of safety and of quality; a culture of openness and of accountability; a culture of public service; a culture in which collaborative teamwork is prized; and a culture of flexibility in which innovation can flourish in response to patients' needs.”[184]
“Respect and honesty
Patients in their journey through the healthcare system are entitled to be treated with respect and honesty and to be involved, wherever possible, in decisions about their care
The quality of healthcare would be enhanced by a greater degree of respect and honesty in the relationship between healthcare professional and patient. Good communication is essential, but as the Royal College of Surgeons of England told us: `... it is the area of greatest compromise…and the source of most complaints'.[185]
Partnership between patient and healthcare professional is the way forward. The exchange and provision of information is at the core of an open and honest relationship between healthcare professionals and patients. There are four fundamental principles which should in future underpin any policy aimed at meeting patients' needs for information. First, trust can only be sustained by openness. Secondly, openness means that information be given freely, honestly and regularly. Thirdly, it is of fundamental importance to be honest about the twin concerns of risk and uncertainty. Lastly, informing patients…must be regarded as a process and not a one-off event.”[186]…
“The safety of care
….
The components of safe care are much more than the actions or competence of healthcare professionals: they include the physical environment, equipment, working arrangements, teamwork and good communication.
The NHS is still failing to learn from the things that go wrong and has no system to put this right. This must change.
A culture of safety in which safety is everyone's concern must be created. Safety requires constant vigilance. Given that errors happen, they must be analysed with a view to anticipate and avoid them.
A culture of safety crucially requires the creation of an open, free, non-punitive environment in which healthcare professionals can feel safe to report adverse events and near misses (sentinel events). …
The culture of blame is a major barrier to the openness required if sentinel events are to be reported, lessons learned and safety improved. The system of clinical negligence is part of this culture of blame….It should be replaced by effective systems for identifying, analysing, learning from and preventing errors and other sentinel events.”[187]
“Clinical standards for the care of patients
For the future, standards for clinical care must be set [and] must be patient-centred. They must not be the product of individual professional groups talking to themselves.”[188]
Finally, on public input and empowerment;
“Public involvement through empowerment
The public are entitled to expect that means exist for them to become involved in the planning, organisation and delivery of healthcare
A patient-centred service is one that is designed and planned to address the needs of the particular sectors of the public it exists to serve. Strategic planning at national level, and decisions at local level must involve the public.
In its everyday working the NHS must take account of and respond to the interests and needs of the public.
The public must be involved in those processes designed to secure the competence of healthcare professionals
The principles which should inform future policy about involving the public and patients in the NHS include:
Patients and the public are entitled to be involved wherever decisions are taken about care in the NHS.
The involvement of patients and the public must be embedded in the structures of the NHS and permeate all aspects of healthcare.
The public and patients should have access to relevant information.
Healthcare professionals must be partners in the process of involving the public.
There must be honesty about the scope of the public's involvement, since some decisions cannot be made by the public.
There must be transparency and openness in the procedures for involving the public and patients.
The mechanisms for involvement should be evaluated for their effectiveness.
The public and patients should have access to training and funding to allow them fully to participate.
The public should be represented by a wide range of individuals and groups and not by particular `patients' groups'.
The priority for involving the public should be that their interests are embedded into all organisations and institutions concerned with quality of performance in the NHS: in other words, the public should be `on the inside', rather than represented by some organisation `on the outside'.”[189]
The Kennedy inquiry made a conscientious effort to make their report definitive, not just for the management, staff and public in Bristol, but the entire health care system, a generalisability concept that came to be known as ‘An Organisation with a Memory’[190]. They strove to understand the actions of individuals within their environment, and what were the factors that drove them to make certain decisions and take certain actions. Actions which at worst they were to describe as “individuals who, in our view, could and should on occasions have behaved differently”.[191]
The issues, as always were complex, and multifaceted.
“There are no right answers; just, perhaps, less wrong answers.[192]…the recommendations are interlocked and interrelated. They are parts of a jigsaw: each needs t other to complete the picture[193]”
However, lessons learned from Bristol underpin almost every reform in the NHS since then.
Australia
Australia has had its share of problems in health care, including the King Edward Memorial Hospital inquiries in Perth[194], resulting in the Douglas Report and subsequent disciplinary hearings and Government responses. This found widespread system and cultural failures in the delivery of services despite repeated complaints and investigations.
In response to this and other[195] developments both within Australia and globally, a number of national initiatives were undertaken.
In parallel with similar initiatives in other countries a Patient Safety Foundation[196] was established and the Australian Council for Safety and Quality in Health Care[197] developed standards for open disclosure of incidents in 2003.[198] This follows the same concept as in the UK of providing a supportive environment as opposed to a punitive one (while preserving accountability).
Other recent initiatives in this area include gathering evidence during 2004 for a ‘Review of Future Governance Arrangements for Safety and Quality in Health Care’.[199]. A draft National Patient Safety Education Framework (2004)[200] addresses many additional areas such as the role of teamwork, leadership, conflict resolution, organisational theory, factors that influence performance, fitness to practice and ethics. However no formal national framework for managing concerns exists yet.
This has become a more pressing matter since the release of the report of the Walker inquiry report in 2004.[201]
Case Study: Walker Inquiry
Four nurses acted as ‘whistleblowers’ in a group of two hospitals forming an outer Sydney health service area in New South Wales (Camden and Campbelltown Hospitals) in November 2002. Their complaints of unsafe and inadequate care were then investigated by the Health Care Complaints Commission (HCCC) which reported in December 2003 ‘substantiating’ the allegations.[202],[203]
Following considerable concerns about the HCCC process and report, a special commission was convened in the same month and reported in June 2004. This commission found considerable fault with the original process. In particular it noted procedural unfairness and ‘deplorable delay’. Subsequently the HCCC commissioner was dismissed. A parliamentary committee also sharply criticised ‘unacceptable delays in investigations’. New performance standards have been put in place.
Under Australian Law, there is a duty of procedural fairness even where legal rights are not affected but reputation may be.[204] The HCCC undeniably violated that. In the final report of the inquiry, the commission was critical of the relationship between disciplinary processes and quality of care.
“Insensitive or overly vindictive disciplinary action can be counter-productive in relation to the overall improvement of health care standards.”
Conclusions
Our thinking about improving quality of care, patient safety, medical error, professional development and regulation, physician wellness and the healthy workplace are converging, but lack a comprehensive framework in most jurisdictions. The evolution has incorporated research into organisational theory, management, team function, human resources, occupational health and psychology, and conflict management.
Appropriately managed, health care settings can develop continuous quality improvement minimise concerns arising from the workplace, and when they do occur, deal with them constructively in a way that minimises disruption of the delivery of care, conserves resources and prevents repetitive problems.
Traditional models for dealing with concerns were reactive, adversarial and punitive, created a false sense of reassurance in terms of the maintenance of quality care, and of protecting the public and were resource intensive. Consequently their impact was more often counterproductive than not.
Often the only recourse health care systems and regulatory bodies had for dealing with concerns were traditional disciplinary structures. Many regulatory authorities have moved towards alternative dispute resolution methods and away from confrontation, in their complaints mechanism.
With appropriate proactive policies, there should be little need for disciplinary procedures which are best reserved for gross misconduct and should apply equitably across the workforce.
Situations in which exclusion from the workforce (suspension) are felt to be the only feasible alternative, should be an extraordinary occurrence, and should be for a minimal period. Clinicians need to be viewed as resources and investments.
Factors involving performance are complex and most frequently reflect an interaction between those that are intrinsic to the individual, and their interaction with external factors.
Assessments and investigations are best managed by bodies external to the organisation to minimise bias and maximise expertise.
Finally the unique situation of university teaching hospitals must be recognised, not only because there is an additional chain of command, but because of the need to consider and protect research and teaching commitments.
Dr Michael Goodyear
Department of Medicine, Dalhousie University
Appendix I: Selected Quotations
Good education and training relevant to the needs of the modern health service, reinforced by continuing learning and professional development throughout a career are the cornerstone to preventing poor individual performance… Clinical audit is an effective tool for reflecting on and improving care. Significant event reporting can help to celebrate good care whilst also identifying opportunities for improvement.
British Medical Association[205]
We believe it is extremely important that proposals recognise the organisational aspects of dealing with poor performance , which may not simply be a result of individual practice but flow from problems associated with organisational culture , managerial or leadership issues.
NHS Confederation[206]
The early detection of… lowered standards is important, but this must be matched by immediate and focused help with retraining, counselling and mentorship… There is, I believe, general support for local arrangements to assist doctors in difficulties which are external …but at the level of a Region …with close links to Regional Advisors and Programme Directors and with established procedures for remedial training….Examination of performance must be carried out within the doctor's working environment.
Royal College of Psychiatrists[207]
The importance of early detection together with the emphasis on rehabilitation and educational
solutions rather than disciplinary ones is also welcomed.
Joint Consultants’ Committee[208]
It is crucial that…the stigma of having one's clinical performance questioned is removed…. BAMM has discussed this issue at some length. The view is that these …centres could conceivably provide a service that is wider than dealing with poorly performing doctors… including those returning to medicine after a career break, those keen to enter a different stream of a specialty….
British Association of Medical Managers[209]
Criminals who commit serious offences are treated better than suspended doctors..lives and careers are wrecked
Baroness Knight of Collingtree[210]
It [suspension] introduces an immediate stigma, increases the degree of confrontation, and makes informal and agreed solutions much more difficult.
Dr Liam Donaldson, Regional Medical Officer, Northern and Yorkshire Health Authority[211]
Many of these disciplinary actions are inspired by professional jealousies and personal grudges, and the whole business then becomes a profoundly wasteful business.
Dr Peter Tomlin, Chair, Society of Clinical Psychiatrists Study Group[212]
Some colleagues regard a different style of clinical practice as incompetence..motives included …professional jealousy, and power struggles…it is easy to dress up allegations so that an administrator suspends the doctor first and investigates afterwards
Dr Peter Tomlin[213]
Insensitive or overly vindictive disciplinary action can be counter-productive in relation to the overall improvement of health care standards.
Walker Inquiry: Special Commission of Inquiry into Campbelltown and Camden Hospitals,
Government of New South Wales, Australia, June 30th 2004.
Draconian measures have a tendency to lower the safety culture.
Professor Firth-Cozens 2004[214]
If disciplinary action is taken – action that may, in fact, be counter-productive to creating a positive change in physician behaviour.
College of Physicians and Surgeons of Alberta[215]
The loss of my job was like a bereavement. Powerful, confusing and shifting emotions swept over me - disbelief (can this really be happening?), sadness, guilt, self-doubt and anger.
Professor Wendy Savage[216]
If we ignore the history of this affair we will be condemned to repeat it. Unless the fundamental issues are dealt with doctors who are guilty of nothing more than having a different approach from that of some of their colleagues will continue to suffer as I have done.
Professor Wendy Savage[217]
As required by the General Medical Council in its guidance to the profession, medical practitioners involved in these arrangements must refrain from depreciating the professional skills and services of others.
Munro Report , October 25 1986[218]
Poor performance and errors are seen as the product of systems which are not working well, as much as the result of any particular individual's conduct.
Kennedy Report, July 2001[219]
Learning…, rather than seeking someone to blame, must be the priority in order to improve safety and quality
Kennedy Report
Openness and transparency are as crucial to the development of trust between healthcare professional and patient, as they are to the trust between the NHS and the public.
Kennedy Report
Partnership between patient and healthcare professional is the way forward. The exchange and provision of information is at the core of an open and honest relationship between healthcare professionals and patients.
Kennedy Report
There are four fundamental principles which should in future underpin any policy aimed at meeting patients' needs for information. First, trust can only be sustained by openness. Secondly, openness means that information be given freely, honestly and regularly. Thirdly, it is of fundamental importance to be honest about the twin concerns of risk and uncertainty. Lastly, informing patients…must be regarded as a process.
Kennedy Report.
It is an account of a hospital where there was a `club culture'; an imbalance of power, with too much control in the hands of a few individuals.
Kennedy Report
Those who tried to raise concerns found it hard to have their voice heard…. there was power but no leadership. The environment was one in which problems were neither adequately identified nor addressed.
Kennedy Report
People with skills are expensive to replace. It makes sense to try to rebuild a career rather than scrapping probably still useful experience, skills and knowledge.
National Clinical Assessment Authority[220]
Rebuilding is right, humane and also required by the Code of Conduct for NHS managers which puts a duty on managers to help staff ‘maintain and improve their knowledge and skills and achieve their potential’.
National Clinical Assessment Authority[221]
Some ‘performance problems’ have their origins simply in a clash of values between manager and clinician.
National Clinical Assessment Authority[222]
Teams exist for purposes, one of which is quality assurance and performance management. The [organisation] needs everyone to take ownership of performance problems and contribute to solving them.
National Clinical Assessment Authority[223]
It must be clear that an organisation’s values statement is not just a PR device but a practical guide to decision-making.
National Clinical Assessment Authority[224]
Differences in work style are normally expected by colleagues and tolerated. But sometimes a different style will attract criticism and come to be seen as a sign of poor performance. If the person first categorising performance as poor is influential, then others may take the same view.
National Clinical Assessment Authority[225]
It is important that people and the way tasks are performed are not seen as problematic merely because they differ from those who are judging them…normal differences which, used well, are necessary strengths in the workplace. When conflicts arise it is worth considering whether they are due more to different approaches and preferences of each party rather than the underlying personality of one.
National Clinical Assessment Authority[226]
Exclusion of clinical staff from the workplace is a temporary expedient…a precautionary measure and not a disciplinary sanction. Exclusion from work ("suspension") should be reserved for only the most exceptional circumstances.
Department of Health (England), 2004[227]
A number of exclusions occur as a result of a breakdown in team working or personality clashes where there appears to be no risk to patients. Where there have been patient safety incidents, trusts have sometimes excluded clinicians despite evidence of systemic failures rather than individual shortcomings… [they] need to support excluded clinical staff to enable them to progress their continuing professional development.
Auditor-General’s Office, 2003[228]
Systems are in place to provide support to staff so that they are successfully integrated back into clinical work…[and]…a support system for excluded staff which includes regular contact with a mentor to ensure their psychological well being is monitored and they have access to continuing professional development so their skill base is maintained.
Auditor-General’s Office, 2003
The NHS is in effect a monopoly employer, so the burden of proof required to terminate a clinician’s contract on grounds of professional competence is high.
Committee of Public Accounts, House of Commons: The management of suspensions of clinical staff in NHS hospitals and ambulance trusts in England. November 2004
Cultures of blame, authoritarianism, narrow mindedness and reckless disregard for staff are not to be tolerated… the model which emerges here is one of down-to-earth decency, humanity, humility, sensitivity and respect for others, but this is no soft option.
Beverley Alimo-Metcalfe, Professorship of Leadership Studies, Leeds University. 2000[229]
Appendix II: Supplementary papers
Goodyear M. Conflict Management in Health Care Teams: A new paradigm - Safer care: Saving costs August 2006 http://myweb.dal.ca/mgoodyea/files/conlict.doc
Goodyear M. Conflict Management in Health Care Teams: A new paradigm - Safer care: Saving costs August 2006 http://myweb.dal.ca/mgoodyea/files/conflict.doc
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[3] Supporting Doctors, Protecting Patients 1999 p39
[4] Building a Safer System. National Steering Committee on Patient Safety. Ottawa 2002. Executive Summary viii Recommendation 5. http://rcpsc.medical.org/publications/building_a_safer_system_e.pdf
[5] Ibid. viii Recommendation 8.
[6] Ibid 7
[7] Ibid 11
[8] Ibid 12
[9] Ibid 14
[10] Ibid 15
[11] Ibid 16
[12] http://www.cpsi-icsp.ca/
[13] Robson R. Debating the patient's "right to know". CMAJ. 1999 Oct 19;161(8):944, 946.
[14] Sibbald B. Winnipeg inquest recommendations watered down, parents say. CMAJ. 2001 Oct 30;165(9):1242
[15] Error and blame: the Winnipeg inquest. CMAJ. 2001 Nov 27;165(11):1461, 1463.
[16] FMLAC. Subsequently renamed FMRAC (Federation of Medical Regulatory Authorities). http://www.fmrac.ca/index.cfm
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[18] Compendium of proceedings of the Aylmer workshops. Federation of Medical Regulatory Authorities of Canada. Ottawa 2000
[19] http://www.cpso.on.ca/info_physicians/peer.htm
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[25] College of Physicians and Surgeons of Ontario. Peer Assessment. http://www.cpso.on.ca/Info_Public/factpeer.htm
[26] Thompson J, Baird P, Downie J. Report of the Committee of Inquiry on the Case involving Dr. Nancy Olivieri, The Hospital for Sick Children, The University of Toronto and Apotex inc. Canadian Association of University Teachers, Ottawa 2001. http://www.caut.ca/en/issues/academicfreedom/OlivieriInquiryReport.pdf
[27] Supplement to the Report, January 2002 http://www.caut.ca/en/issues/academicfreedom/SupplementtoInqReport.pdf
[28] Complaints Committee Decision and Reasons, College of Physicians of Ontario November 2001 http://www.caut.ca/en/issues/academicfreedom/Olivieri_CPSO.pdf
[29] CPSO Discipline Committee Decisions http://www.cpso.on.ca/publications/discsum/2004/discmay04.htm#Koren
[30] Report of the Committee op cit recommendations 17, 18 p43-4
[31] Editorial: Questions of interest. CMAJ, 2002; 166 (4): 413
[32] Viens AM, Savulescu J. Introduction to The Olivieri symposium. J Med Ethics 2004;30:1-7
[33] The Globe and Mail, cited in Viens and Savelescu op cit.
[34] CAUT Policy Statement on Academic Appointments Held Jointly in a University and a Related Institution. http://www.caut.ca/en/policies/jointappointments.asp
[35] Defending Medicine: Clinical faculty and academic freedom CAUT 2004.
[36] Donaldson L. Commentary: The Doctor’s Dilemma: A response. International Journal of Epidemiology 2003;32:915-916
[37] Griffiths R. Report of a review of the research framework in the North Staffordshire Hospitals NHS Trust. NHS Executive West Midlands Regional Office 2000 http://www.dh.gov.uk/assetRoot/04/01/45/42/04014542.pdf
[38] Ritchie J. The Report of the Inquiry into Quality and Practice Within the National Health Service Arising from the Actions of Rodney Ledward. London: NHS Executive South East Regional Office, 2000. http://www.dh.gov.uk/assetRoot/04/09/33/42/04093342.pdf
[39] The Royal Liverpool Children’s Inquiry – Report and Summary and Recommendations (The Redfern Report) HMSO 30 January 2001 (HC 12-1)
[40] Kennedy I. Learning from Bristol: the Report of the Public Inquiry into Children’s Heart Surgery at the Bristol Royal Infirmary 1984–1995. London: The Stationery Office, 2001 (Cm 5207).
[41] 40th Report from the Committee of Public Accounts 1994-95 'Suspension of Dr O'Connell' HC 322
[42] Donaldson L. Doctors with problems in an NHS workforce. BMJ 308: 1277-1282, 1994
[43] See Appendix: Selected Quotations
[44] General Medical Council. Proposals for new performance procedures: a consultation paper. London, 1992
[45] http://www.scpnet.com/Susped.htm
[46] BMJ 317: 811-2, 1998
[47] A consultation paper on preventing, recognising and dealing with poor clinical performance of doctors in the NHS in England http://www.dh.gov.uk/assetRoot/04/04/28/02/04042802.pdf
[48] Suspensions - a new perspective: Report of the short-life working group on suspension of medical and dental staff. Scottish Office, Department of Health 1999. (Circular PCS(DD)1999/7, 6 April 1999.
[49] Supporting doctors Foreword p3
[50] Ibid 7
[51] Ibid 37
[52] A Savage inquiry
[53] See Auditor General’s and Committee of Public Accounts Reports
[54] Supporting doctors p8
[55] Ibid 9
[56] Ibid 40
[57] The New NHS Modern, Dependable. Department of Health 1997. http://www.archive.official-documents.co.uk/document/doh/newnhs/newnhs.htm
[58] Supporting Doctors Ibid 11
[59] Ibid 19
[60] Ibid 34
[61] Improving the Health of the NHS Workforce- Report of the Partnership on the Health of the NHS Workforce Nuffield Trust, 1998
[62] Dr Eva Grunfeld, Cancer Care Nova Scotia, Personal Communication.
[63] Grunfeld E, Zitzelsberger L, Coristine M, Whelan TJ, Aspelund F, Evans WK. Job stress and job satisfaction of cancer care workers. Psychooncology. 2005 Jan;14(1):61-9
[64] Elit L, Trim K, Mand-Bains IH, Sussman J, Grunfeld E; Society of Gynecologic Oncology Canada. Job satisfaction, stress, and burnout among Canadian gynecologic oncologists. Gynecol Oncol. 2004 Jul;94(1):134-9
[65] Grunfeld E, Whelan TJ, Zitzelsberger L, Willan AR, Montesanto B, Evans WK. Cancer care workers in Ontario: prevalence of burnout, job stress and job satisfaction. CMAJ. 2000 Jul 25;163(2):166-9.
[66] Supporting Doctors Ibid 63
[67] Ibid 31
[68] Ibid 37
[69] Ibid 39
[70] Ibid 50
[71] Ibid 55
[72] Ibid 56
[73] Ibid 58
[74] Ibid 59
[75] Ibid 60
[76] Ibid 78
[77] Ibid 70
[78] Ibid 72
[79] Ibid 78
[80] Ibid 74
[81] Subsequently (2004) the Healthcare Commission
http://www.healthcarecommission.org.uk/Homepage/fs/en
[82] Supporting Doctors Ibid 75
[83] Ibid 77
[84] Assuring the Quality of Medical Practice: A summary of the responses to Supporting Doctors, protecting patients. NHS Executive 2001.
[85] Appendix: Selected Quotations
[86] Assuring the quality of medical practice: Implementing Supporting doctors protecting patients. Department of Health 2001 http://www.dh.gov.uk/assetRoot/04/08/46/19/04084619.pdf
[87] http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4006902&chk=j2Tt7C also HSSC 1998/113 http://www.dh.gov.uk/assetRoot/04/01/18/33/04011833.pdf
[88] Report of an expert group on learning from adverse events in the NHS chaired by the Chief Medical Officer http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4065083&chk=PARoiF
[89] "A framework through which NHS organisations are accountable for continually improving the quality of their services and safeguarding high standards of care by creating an environment in which excellence in clinical care will flourish."
http://www.cgsupport.nhs.uk/About_CGST/Clinical_Governance_defined.asp
G Scally and L J Donaldson, Clinical governance and the drive for quality improvement in the new NHS in England BMJ (4 July 1998): 61-65.
Clinical governance is based on Corporate Governance. It incorporates the four fundamental principles of quality outlined by the World Health Organisation – Technical Performance, Resource Efficiency, Minimising Risk, and Patient Satisfaction.
(The Principles of Quality Assurance. WHO Copenhagen 1983)
[90] Assuring the quality of medical practice 11
[91] http://www.ncaa.nhs.uk/
[92] http://www.cgsupport.nhs.uk/
[93] Assuring the quality of medical practice 13
[94] Ibid 20
[95] Ibid 21
[96] Ibid 22
[97] Ibid 23
[98] Good Medical Practice. GMC http://www.gmc-uk.org/standards/good.htm
[99] Assuring the quality of medical practice 24
[100] Ibid 26
[101] Ibid 27
[102] http://www.modern.nhs.uk/home/default.asp?site_id=58
[103] Assuring the quality of medical practice Ibid 28
[104] Ibid 31
[105] Ibid 32
[106] Cadbury A. Report of the Committee on the Financial Aspects of Corporate Governance. Gee, London, 1992 (Cadbury Report) http://www.worldbank.org/html/fpd/privatesector/cg/docs/cadbury.pdf
[107] Berwick D. Continuous improvement as an ideal in health care. N Engl J Med 1989. 320: 53-56
[108] Kanter R. The change masters Allen and Unwin, London 1984.
[109] http://www.bristol-inquiry.org.uk
[110] http://www.the-shipman-inquiry.org.uk
[111] http://www.dh.gov.uk/PolicyAndGuidance/HumanResourcesAndTraining/ModernisingProfessionalRegulation/DoctorsAndDentistsDisciplinaryFramework/fs/en
[112] http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPAmpGBrowsableDocument/fs/en?CONTENT_ID=4103418&chk=UVbdwG
[113] http://www.dh.gov.uk/PolicyAndGuidance/HumanResourcesAndTraining/ModernisingProfessionalRegulation/DoctorsAndDentistsDisciplinaryFramework/DoctorsAndDentistsDisciplinaryFrameworkArticle/fs/en?CONTENT_ID=4072771&chk=x9pnf/
[114] It is important to realise that moving away from blame does not mean abandoning accountability, which is a separate issue.
[115] http://www.dh.gov.uk/PolicyAndGuidance/HumanResourcesAndTraining/ModernisingProfessionalRegulation/DoctorsAndDentistsDisciplinaryFramework/DoctorsAndDentistsDisciplinaryFrameworkArticle/fs/en?CONTENT_ID=4072772&chk=bWsU3a
[116] http://www.dh.gov.uk/PolicyAndGuidance/HumanResourcesAndTraining/ModernisingProfessionalRegulation/DoctorsAndDentistsDisciplinaryFramework/DoctorsAndDentistsDisciplinaryFrameworkArticle/fs/en?CONTENT_ID=4072774&chk=i/Nfe0
[117] http://europa.eu.int/scadplus/leg/en/lvb/l33501.htm
[118] New framework for discipline and suspension. Joint statement of agreed principles September 9th 2003. http://www.dh.gov.uk/assetRoot/04/06/99/57/04069957.PDF
[119] Follett B, Paulson-Ellis M. A Review of Appraisal, Disciplinary and Reporting Arrangements for Senior NHS and University Staff with Academic and Clinical Duties: A report to the Secretary of State for Education and Skills, September 2001. http://www.dfes.gov.uk/follettreview/
[120] Ibid p6
[121] Ibid p8
[122] Ibid p10
[123] Ibid p15
[124] Ibid p19
[125] Ibid p20
[126] Maintaining high professional standards in the modern NHS: Guidance on clinical academics. Department of Health April 2004. http://www.dh.gov.uk/assetRoot/04/08/06/78/04080678.PDF
[127] NCAA 2003/4 Annual Report
[128] http://www.ncaa.nhs.uk/toolkit/. Last accessed Dec 29 2004
[129] E.g. Csikszentmihalyi M. Finding Flow: The Psychology of Engagement With Everyday Life. Perseus, 1997
[130] West M, Markiewicz L. Building Team-based Working – A practical guide to organisational transformation. BPS Blackwell, 2004
[131] West, M.A., Borrill, C., Dawson, J., Scully, J., Carter, M., Anelay, S., Patterson, M., & Waring J. The link between the management of employees and patient mortality in acute hospitals. International Journal of Human Resource Management, 13: 1299-1310, 2002
[132] http://www.investorsinpeople.co.uk/IIP/Web/default.htm
[133] Pendleton D, King J. Values and leadership. BMJ 325: 1352-1355, 2002
[134] http://www.ncaa.nhs.uk/toolkit/viewdoc.asp?load=true&file=PDF/Developing%207%20-%20Principled%20negotiation.pdf
[135] http://www.gmc-uk.org/standards/good.htm.
Supplementary codes now exist for specialist physicians:
http://www.rcplondon.ac.uk/files/GoodMedicalPracticeForPhysicians.pdf, and for the various medical subspecialties, e.g Medical Oncology: http://www.rcplondon.ac.uk/files/gmpfp_ap13_medicaloncology.pdf
[136] 68% of referrals involve behaviour
[137] Behavioural Coaching: http://www.behavioral-coaching-institute.com/Resources.html
[138] Advisory Handbook – Discipline & Grievances at Work: http://www.acas.org.uk/publications/h02.html
[139] http://www.rcog.org.uk/mainpages.asp?PageID=773
[140] http://www.ncaa.nhs.uk/pubs/other/NCAA_Report_Understanding_Performance_Difficulties_in_Doctors.pdf
[141] http://www.ncaa.nhs.uk/pubs/other/Bibliography_Understanding_Performance_Difficulties_in_Doctors.pdf
[142] Ibid 4
[143] Ibid 43
[144] Ibid 13
[145] Ibid 21
[146] Ibid 28
[147] Ibid 29
[148] Ibid 30
[149] Ibid 35
[150] Ibid 36
[151] Ibid 37
[152] Ibid 37
[153] Ibid 43
[154] http://www.healthcareskills.nhs.uk/teams-leadership.html
[155] Understanding Performance Difficulties in Doctors 44
[156] The Management of Suspensions of Clinical Staff in NHS Hospital and Ambulance Trusts in England Report By The Comptroller And Auditor General HC 1143 Session 2002-2003: 6 November 2003 http://www.nao.org.uk/publications/nao_reports/02-03/02031143.pdf
[157] The management of suspensions of clinical staff in NHS hospitals and ambulance trusts in England. Committee of Public Accounts, House of Commons. Forty–seventh Report of Session 2003–04 HC296 November 2004 http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubacc/296/296.pdf
[158] Auditor General’s Report 2003 p2
[159] Ibid 5
[160] Ibid 9
[161] Ibid 25
[162] Ibid 32
[163] Committee of Public Accounts 2004 p4
[164] Ibid 7
[165] Ibid. Evidence Mr Richard Bacon MP Q59
[166] Ibid Evidence 13
[167] Savage W: A Savage Enquiry Virago Press 1986.
[168] Advisory panel’s report to Tower Hamlets District Health Authority. BMJ 293: 1091-1092, 1986
[169] The trial of Mrs Wendy Savage. Lancet ii: 986, 1986
[170] Savage W. The Savage inquiry: a personal reply. BMJ 294: 775, 1987
[171] Learning from Bristol: the report of the public inquiry into children's heart surgery at the Bristol Royal Infirmary 1984 –1995 Command Paper: CM 5207 http://www.bristol-inquiry.org.uk/
[172] Learning from Bristol: Department of Health’s Response January 2002 http://www.dh.gov.uk/assetRoot/04/05/94/79/04059479.pdf
[173] Keogh B, Spiegelhalter D, Bailey A, Roxburgh J, Magee P, Hilton C. The legacy of Bristol: public disclosure of individual surgeons' results. BMJ. 2004 Aug 21;329(7463):450-4.
[174] Keogh op cit 450
[175] Doctor suspensions soar in wake of Bristol scandal. BBC 15 march 1999 http://news.bbc.co.uk/1/hi/health/background_briefings/the_bristol_heart_babies/163546.stm
[176] Learning from Bristol Summary 3-5, 7-8, 10-11
[177] Ibid 11
[178] Ibid 21
[179] Ibid 24
[180] Ibid 26-7
[181] Ibid 30
[182] Ibid 51
[183] Ibid 14
[184] Ibid 59
[185] Ibid 60
[186] Ibid 62
[187] Ibid 81-84, 86
[188] Ibid 92
[189] Ibid 98-102
[190] http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4065083&chk=PARoiF
[191] Learning from Bristol Summary 43
[192] Ibid Recommendations at 434
[193] Ibid at 436
[194] Inquiry into obstetric and gynaecological services at King Edward Memorial Hospital 1990-2000 http://www.health.wa.gov.au/kemhinquiry/
[195] Faunce TA, Bolsin SN. Three Australian whistleblowing sagas: lessons for internal and external regulation. Med J Aust. 2004 Jul 5;181(1):44-7.
[196] http://www.apsf.net.au/
[197] http://www.safetyandquality.org/
[198] Open Disclosure Standard: A National Standard For Open Communication In Public And Private
Hospitals, Following An Adverse Event In Health Care. Australian Council For Safety And Quality In Health Care January 2003 http://Www.Safetyandquality.Org/Articles/Publications/Opendisclosure_Web.Pdf
[199] http://www.health.gov.au/internet/wcms/publishing.nsf/Content/health-sqreview.htm
[200] http://www.patientsafety.org.au/
[201] Special Commission of Inquiry into Camden and Campbelltown Hospitals http://www.findlaw.com.au/articles/default.asp?task=read&id=11894&site=GN
[202] Eagar K. The weakest link? Aust Health Rev. 2004;28(1):7-12.
[203] Holland J. HCCC Report and special commission of inquiry into Camden and Campbelltown Hospitals and Macarthur Health Service. Australian Health Law Bulletin 12(7): April 2004
[204] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
[205] Response to Supporting doctors, protecting patients
[206] Response to Supporting doctors, protecting patients
[207] Response to Supporting doctors, protecting patients
[208] Response to Supporting doctors, protecting patients
[209] Response to Supporting doctors, protecting patients
[210] Debate, Suspension of hospital doctors Bill, House of Lords 2000. BMJ 321: 72, 2000.
[211] BMJ 308: 1277-82, 1994
[212] BMJ 321: 72, 2000
[213] BMJ 317: 812, 1998
[214] Qual Saf Health Care 13: 58, 2004
[215] College of Physicians and Surgeons of Alberta. Complaint Process.
[216] Savage W: A Savage Enquiry Virago Press 1986. Cited in Auditor General’s report 2003
[217] Savage W. The Savage inquiry: a personal reply. BMJ 294: 775, 1987
[218] Advisory panel’s report to Tower Hamlets District Health Authority. BMJ 293: 1091-1092, 1986
[219] Learning from Bristol: the report of the public inquiry into children's heart surgery at the Bristol Royal Infirmary 1984 –1995 Command Paper: CM 5207
[220] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[221] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[222] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[223] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[224] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[225] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[226] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[227] Department of Health. Doctors And Dentists: Disciplinary Framework 2004
[228] The Management of Suspensions of Clinical Staff in NHS Hospital and Ambulance Trusts in England, November 2003
[229] Alimo-Metcalfe B, Alban–Metcalfe R. Heaven can wait. Health Service J 12 October 2000 26-8.
I could not locate the name of the author to whom full credit should go. Any claimers welcome on the comments section. Thanks.
The Management of Concerns within Health Care Systems in the Context of Total Quality Management
CONTENTS
Introduction. 3
Canada. 3
Appraisal 5
Complaints. 5
Case Study: Dr Nancy Olivieri 6
Defending Medicine. 7
United Kingdom.. 8
Supporting Doctors, Protecting Patients. 9
The Problem.. 9
Recommendations. 11
Response. 13
Implementation. 13
Identifying problems with a doctor’s practice and putting things right 14
Clinical Governance. 16
Subsequent events. 17
NHS Guidances and Directives. 18
Doctors' and dentists' disciplinary framework: introduction and explanatory note. 18
Action when a concern arises. 19
Restriction of practice and exclusion from work. 20
Guidance on clinical academics. 22
National Clinical Assessment Authority (NCAA) 23
NCAA Toolkit 23
Managing. 24
Alerting. 25
Investigating. 25
Rebuilding. 26
Discipline. 27
Support 28
NCAA Research. 28
Auditor General’s and Committee of Public Accounts Reports. 33
Case Study 1: Wendy Savage. 34
Case Study 2: Bristol Royal Infirmary. 37
Australia. 43
Case Study: Walker Inquiry. 43
Conclusions. 44
Appendix I: Selected Quotations. 46
Appendix II: Supplementary papers. 51
Introduction
Recently, and understandably, there has been a great deal of public interest and concern[1] about a series of closely related issues, regulation of health professions, medical errors[2] and patient safety, and continuing quality improvement. Regulation and evaluation should meet a dual role, that of protecting and reassuring the public as to the maintenance of standards, and reassuring and supporting the professions as to the quality of care delivered.
An aspect of this that has been relatively overlooked and not yet integrated well into the overall picture has been the way in which health care systems handle problems, all too often by dealing with the aftermath and not the cause.[3]
This paper attempts to summarise our current understanding of these issues, illustrated by what we know about the evolution of concepts in selected countries, and by selected case studies from those countries.
Canada
In Canada, despite the fact that performance evaluation and correction is appropriately embedded in the rhetoric of patient safety and quality management, no formal national approach to this has been addressed, being left instead to Provincial licensing authorities.
2002 was a watershed year for patient safety with the report of the National Steering Committee on Patient Safety. In ‘Building a Safer System’ we find reference to the need to “Develop and implement responsive patient-focused programs for the receipt, review and management of concerns within health-care organizations.”[4]
The document also addresses the need to “Develop a greater focus on improvement through education and remediation, vs. blame and punishment, in legal, regulatory and human resource processes”[5].
In addressing the overall question, one of five working groups was assigned to the legal and regulatory questions: ‘How can the manner in which the regulation and monitoring of health-care professionals and their institutions, and the legal systems, improve safety?’
One of the incidental recommendations was the rejection of the term ‘medical error’ as being associated with a ‘culture of blame’.[6] The overarching conceptual model[7] saw the legal and regulatory processes as but one ingredient of an integrated system, which included measurement, evaluation, education and communication. However the emphasis in this group was on tackling a legal and regulatory environment that perpetuates fear of blame and litigation[8], rather than on monitoring and correction.
Although recommendation 5[9] focuses on the management of concerns, it is from the vantage point of complaints from patients and families (patient focused) about adverse events. However it recognised the need for an open culture and resolution in contradistinction to an adversarial system based on punishment and isolation. It noted that the current system does not encourage discussion of issues, due to a perceived burden of ‘perfection’. The preferred culture is described as one of safety[10]. However in terms of ‘non-punitive’ reporting, the emphasis would appear to be on the reporter rather than on the reported, which seems unbalanced.
Regulatory bodies are seen as involved in a search for and need to cull ‘bad apples’ rather than stressing education and remediation. The preferred system is based on continuous improvement and learning (sometimes referred to as a culture of learning).
The second recommendation dealing with legal and regulatory issues is number 8. In this, regulatory bodies are still seen as having the responsibility for evaluation and addressing competence and performance, and correction of ‘incompetence’.[11] Although restrictions on practice and withdrawal from practice are visualised as remedies, the preferred approach is stated to be identification and remedy of underlying problems.
‘Building a Safer System’ recognised the potential for devastating consequences to the individual resulting from hearsay or premature conclusions based on inadequate information and urged effective peer review.
The outcome of this, as in many other countries, was the establishment of the Canadian Patient Safety Institute[12] in 2004.
Little is known about the management of concerns and complaints in Canada, other than a few well publicised cases, usually at the level of Provincial College proceedings, often involving sexual offences or fraud. The CMPA has a database of legal actions and disciplinary proceedings. There has been debate as to whether this should be made available for research.[13] CMPA records reveal 200-300 cases per year involving physician’s hospital privileges.
Canada has had its own version of the Bristol Royal Infirmary (see Case Study) paediatric cardiac surgery tragedy in Winnipeg,[14] and similar issues around accountability and blame have come to light. As a CMAJ editorial at the time, states;
“It is always easier to find a scapegoat than to change the culture of a working environment. But we must find the resources and muster the personal resolve to look at what we do in a systematic way, prospectively as well as retrospectively, expecting errors and developing non-blaming mechanisms for preventing them.”[15]
Appraisal
A framework for physician appraisal has been in existence in Canada since 1993 in the capacity of the Federation of Medical Licensing Authorities of Canada[16] and its Model for Monitoring and Enhancement of Physician Performance (MEPP).[17] The underlying philosophy being changing the emphasis from blame to quality improvement and learning. A series of workshops on these topics (the Aylmer Workshops) were held over 1994-2000.[18] One of the limitations is that these concentrated on the role of Provincial licensing authorities as opposed to health care systems internal disciplinary procedures.
Regional assessment programmes have been developed in Alberta, Ontario[19] and the Atlantic (Atlantic Provinces Medical Peer Review Program), established in 1993.[20] A related programme in Alberta is the Physician Achievement Review programme which seeks feedback from health care consumers and colleagues about physician performance.[21] Nova Scotia started its own peer assessment process at the beginning of 2005 (NSPAR)[22],[23] based on the Alberta model. At present this is limited to primary care.
Complaints
Meanwhile Provincial Colleges are actively exploring alternative less adversarial or punitive approaches to resolving complaints.
“The College approaches complaints about physicians as problems to be solved.
A complaint may provide the opportunity for a physician to change behaviour, or to improve some aspect of practice. In some instances…assessment and retraining may be required. Our experience is that the best outcome happens when the physician is a willing participant in the complaint process. …
We prefer to work with the physician to identify the problem and to work towards a solution. We believe that the chances of long-term success with this approach are much higher than if disciplinary action is taken – action that may, in fact, be counter-productive to creating a positive change in physician behaviour.[24]”
And moving from a reactive complaint process to a preventative approach
“We are changing the way the College currently monitors the performance of physicians. Specifically, we are moving from a reactive complaints and discipline model, to one which seeks to better guide the profession and prevent practice problems. The College wants to help physicians before any bad habits become entrenched into daily practice.”[25]
Case Study: Dr Nancy Olivieri
The inquiry which has created the greatest public interest in Canada is the Olivieri Report.[26],[27],[28] A Toronto paediatric haematologist found herself in conflict with the commercial sponsor of a trial she was conducting. She was dismissed from her position, referred to her hospital’s internal disciplinary committee (Medical Advisory Committee), and then referred to the College of Physicians and Surgeons of Ontario’s Disciplinary Committee for misconduct, who cleared her of the charges. Ultimately she was reinstated, and her main accuser was actually the one who was ultimately disciplined by the College.[29]
The case raised many questions about the relationship of institutions, investigators, research oversight and commercial interests, about academic freedom, and the interaction between universities and health care organisations.
In its recommendations the Independent Committee of the Canadian Association of University Teachers[30] addressed the need for clinical academic staff to have equal access to grievance and arbitration procedures as their non-clinical colleagues, and that Medical Advisory Committee and Board decisions be subject to such procedures. It also addressed the need for due process in disciplinary procedures and for the above to be incorporated into affiliation agreements between universities and teaching hospitals.
In an editorial at the time, the Canadian Medical Association Journal recommended that in future such matters be investigated by independent committees.[31] The many issues raised by these events continue to ricochet not only in Canadian but international medical circles, and even a novel.[32]
“In failing...[her] when she needed them most, it is now clear that some members of the University’s Faculty of Medicine heard her muffled cries of academic freedom from the back room, yet their response was to serve another round of drinks and turn the music up louder.”[33]
Defending Medicine
In the wake of the Olivieri affair, CAUT’s Academic Freedom Committee set about addressing the broader issues of the interface between universities and teaching hospital in dealing with clinical academic staff. A position paper on joint appointments was released in 2002[34] enshrining the relevant recommendations from the Olivieri report.
At the same time a Task Force on Academic Freedom for Faculty in University-Affiliated Health Care Institutions was established to undertake a wider inquiry and its report was released in November 2004.[35]
In essence this noted widespread vulnerability and abuse, and in particular the use of termination and control of revenue to enforce social and academic acquiescence. It again stated that clinical academic staff must have the same rights and privileges as non-clinical academic staff. In particular it noted the need for security in terms of employment and income, and the triple jeopardy faced by the intermingling of university, hospital and practice plan personnel.
Disciplinary bylaws usually lack access to natural justice and procedural fairness, in striking contrast to grievance arbitration.
United Kingdom
While a number of countries including the United States, Australia, New Zealand and the UK have undertaken similar initiatives, only the UK has undertaken a radical overhaul of its procedures for dealing with concerns in the health care system.
These reforms followed a series of well publicised events and inquiries[36], including the events leading to and following the Beaumont (London 1986), Griffiths (North Staffordshire 2000)[37], Ritchie (Kent 2000)[38], Alder Hey (2001)[39] and Kennedy (Bristol 2001)[40] inquiries. Another stimulus was a report of the Committee of Public Accounts of the House of Commons in 1995.[41] These various inquiries and reports made sweeping recommendations for reform.
Concerns at an administrative level surfaced in 1994 with Donaldson’s analysis of and description of the inadequacies of the existing system.[42] He described the experience of one Health Authority where serious allegations arose in 6% of the workforce, delineating the areas of concern and outcomes. Approximately half of the doctors returned to the workforce. Suspension was rarely used[43], retirement being used more commonly to resolve intractable problems. Referral to the General Medical Council was also rarely used. Donaldson pointed to proposed reforms by the Council which would shift the emphasis from punishment to remedy.[44]
Another pressure on the system came from the Society of Clinical Psychiatrists which formed a study and support group on suspensions and suspended doctors, and produced two reports (1990 and 1999) describing the practice as ‘shocking’ and ‘a blot’.[45] They showed that less than a third of cases involved allegations of professional incompetence and that only 10% of allegations were found to be justified. They commented on the severe health problems that ensued in the suspended physicians. Tragically three of 171 suspended physicians died as a result of the suspension.[46]
Supporting Doctors, Protecting Patients
In 1999 the English Department of Health released a consultation paper: ‘Supporting Doctors, Protecting Patients’[47], under the framework of improved Clinical Governance (see below under implementation) and quality improvement (similar papers followed in Scotland[48] and Wales).
The Problem
The paper recognised the ‘legalistic inflexibility’[49] of the existing system of dealing with concerns about individual performance, and set out to develop a concept that was ‘supportive and preventive’. In doing so it recognised that when problems had come to light in the past they often revealed chronic system failures, and therefore sought to be proactive rather than reactive.[50] Amongst the recommendations were that assessment should be performed at a distance, should not be precipitate, and should be beware of those who seek to create inaccurate scenarios.
Interestingly, while identifying well documented failures it only briefly alluded to instances where subsequent inquiries revealed that the alleged concerns had no substance[51], like the Beaumont inquiry[52]. A subsequent report by the National Audit Office (NAO) has addressed this.[53]
Three essential components were identified; prevention, recognition, and correction[54]. These were depicted as ‘an alternative to disciplinary action’[55]. It also recognised the need to move in tandem with professional associations and licensing authority (General Medical Council), and professional self-regulation in general[56] as part of a framework of the ‘delivery of quality patient services”.[57]
Amongst failures identified in the existing systems were local solutions without system-wide approaches incorporating learning, and a failure to incorporate Human Resources principles, resulting in unfair, costly and cumbersome procedures, instead of providing a transparent atmosphere for discussing performance and concerns, and the provision of professional development and support[58]. It was hoped that this approach would greatly diminish the number of disputes, and actual incidents of patient harm. All too often performance issues were seen as ‘punishable offences’.
A recurring theme running through all these inquiries and [59]reports was that of system wide failure;
“Nevertheless, sometimes the failure may not be wholly attributable to one individual but may be symptomatic of organisational malaise. In determining remedial action, organisational factors need to be taken into account.”
At that time it was estimated that about 6% of the senior workforce were having problems, and about 5/10,000 (0.05%) doctors were under suspension. Doctors at every stage in their career can exhibit significantly higher levels of psychological disturbance than those found in equivalent professional occupations[60]. Health problems range from anxiety, emotional exhaustion to clinical depression and suicide. In some groups these problems are associated with addiction (e.g. alcohol and drug misuse) and with a lower standard of patient care. Moreover, many doctors are reluctant to admit that they are sick, and may self-prescribe. Many physicians do not have regular family doctors. In 1998 a Nuffield Trust survey found that 25-50% of hospital workers exhibited psychological disturbance[61]. Similar figures have been reported amongst cancer workers in Canada[62],[63],[64],[65].
Therefore in conjunction with the new procedures being recommended would be measures to reduce stress in the workplace.[66]
While the General Medical Council (GMC) had procedures in place for dealing with performance concerns, it was considered that referring all cases was impractical due to ‘the volume of such cases’ and that furthermore this would represent ‘an inappropriate abrogation’ of the health authorities’ ‘proper role as employers’ as well as introducing impractical delays.
Cumulative costs to the National Health System in England in 1999 of suspensions lasting more than 6 months was estimated as over £2,500,000[67].
The report was also acutely aware of the potential for abuse of the performance review system by unwarranted allegations[68], and recognized the considerable damage that can occur. Whether the allegations were warranted or not the report recognized the debilitating effect of existing procedures including cost, morale of clinical staff, and burden on administrators. Perhaps most significant of all ‘the opportunity for re-education or improvement is then often permanently lost.’[69]
Recommendations
In developing a quality framework[70] the report recognized that key elements must include the development of agreed standards and a monitoring system to ensure that the standards are being delivered. Theoretically this should result in early detection in changes in quality at various levels of the organizational structure and the opportunities for early correction. It emphasized the need for all levels of organizational structure to take responsibility for quality and performance within their area of responsibility.[71] This is in contradistinction to less efficient systems based on complaints and incidents.[72]
Mechanisms to achieve this include Continuing Professional Development (CPD) and Clinical Audit. Inherent in this is appraisal, both self and peer originated.[73] It is stressed that
“Appraisal is a positive process to give someone feedback on their performance, to chart their continuing progress and to identify development needs. It is a forward looking process essential for the developmental and educational planning needs of an individual. Assessment is the process of measuring progress against defined criteria… It is not the primary aim of appraisal to scrutinise doctors to
see if they are performing poorly but rather to help them consolidate and improve on good performance aiming towards excellence..”[74]
This in turn demands that methods of appraisal be valid and understood, and that those involved in appraisal be adequately trained in its execution.[75]
In proposing remedies as to how concerns when raised are dealt with, the report recommended an external source of support and assessment rather than highly variable local procedures, to provide a more neutral environment[76], free from acrimony. In particular it was stressed that a new mechanism must be integrated into the procedures of professional associations.[77]
Specifically it was recommended that a number of Assessment and Support Centres be established[78] to impartially advise employers on procedure and to provide an ‘environment supportive of the doctor undergoing assessment’. While it was envisaged that any new system would replace traditional disciplinary measures, it was also realized that some conduct issues (e.g. theft) would be more appropriately handled locally. Similarly although it was suggested that performance issues be handled by the Centres in liaison with the GMC, some issues of severe dysfunction would require early intervention by that body.
In terms of the operating details, it was suggested that where concerns arose ‘for which there was no immediate solution’, referral be without stigma[79], and occur without delay. Mechanisms would also be in place for self referral where appropriate.
In dealing with the issue of stigma it was stressed that ‘referral is not a disciplinary act. It would be exceptional for a doctor to be suspended prior to referral.’
It was proposed that suspension be reserved for
(i) physicians refusing referral
(ii) physicians referred back with intractable problems
(iii) imminent danger to patients
(iv) internal disciplinary procedures
Centres would judge the appropriateness of the referral, assess the situation and issue recommendations. Recommendations would be either[80];
(i) a return to practise, reassured
(ii) return to practise with monitoring by specific criteria
(iii) re-education or retraining and reassessment,
(iv) referral to the GMC for registration issues (imminent danger),
(v) referral for treatment,
(vi) referral back to employer, considered serious and intractable (termination or retirement)
There would also be scope for referral of the problem to the authorities because of serious organisational implications. In practice this referral was to be the Commission for Health Improvement[81]. Implementation would remain with the referring health authority.[82] And there would be a right of appeal. The centre would coordinate retraining or treatment. Doctors would remain on full pay.[83]
It was hoped that this process would reduce the need for legal involvement, and allow for the development of expertise in assessment.
Response
The Department of Health tabulated, summarized and circulated the nearly 400 responses to the Consultation Paper[84]. Responses were favourable in principle but differed on details. Respondents thought that the process should be more patient centred. It was felt there was a need for a separate process for teaching hospitals. There was strong support for making the process part of Continuing Professional Development, and not part of any disciplinary process. It was felt that assessment in the workplace itself would be useful in order to separate system failure from performance failure. (Some comments from those responses are appended below[85])
Implementation
Release of the responses was accompanied by an implementation paper[86] incorporating the consultation process. It appeared in the wake of a number of initiatives to develop standards and monitor performance of the NHS overall, including the establishment of a Commission for Health Improvement (1999), subsequently subsumed into the Healthcare Commission (2004), and the 1998 publication of ‘A First Class Service: Quality in the NHS’[87]. Another source was ‘An Organization With a Memory’[88] (2000) which identified that the system as a whole was failing to learn from adverse events and near misses in individual institutions, and led to the establishment of a national reporting system.
A further concept that was being developed was that of Clinical Governance[89]. Amongst the provisions of this programme was the idea ‘that all clinical staff take an active part in reviewing the quality of the services they provide and in planning ways of improving them.’[90]. Governance was based on the essential elements of clinical audit, the use of evidence-based practice, continuing professional development, risk management, early identification and remedy of performance and active working with patients and service users’. This concept is discussed in greater depth in the next section.
The report was therefore framed very much in the overall context of establishing and maintaining high standards. The work of the Commission for Health Improvement (CHI) had already indicated that both quality and the mechanism for ensuring high standards varied widely.
This report also launched the new authority, the National Clinical Assessment Authority[91]
to oversee the system. The foundation of the new system was Continuing Professional Development (CPD), appraisal and audit. This was seen as an inherent component of the recently introduced 5 yearly revalidation programme of the GMC.
In accordance with the guiding philosophy of support, a Clinical Governance Support Team[92] was created to assist implementation at the local level. A key element of Clinical Governance was the inclusion of patients in the process. Patient groups had input into the Supporting Doctors consultation.[93]
Identifying problems with a doctor’s practice and putting things right[94]
With regards to the specific issues of managing concerns, the final model for an assessment service was a flexible one based on local visits to minimize disruption and stigma. In keeping with lay input, the assessments “may involve gathering information on patients’ experience of the doctor’s service”[95].
In contrast to traditional problem solving;
“[The] Authority will endeavour to provide the doctor with a supportive environment while he or she is undergoing assessment, and will strive to be non-stigmatising. The focus will be very much on problem-solving, and where a problem with the doctor’s performance is found, …answering the question “what practical steps need to be taken so that this doctor can return to practice without risk to patients?”
Furthermore, to protect physicians a provision was included whereby a doctor would be able to seek the assistance of the Authority in situations where they were concerned that they were “the target of unjustified allegations”.
Funding would include the employment of locums as well as any expenses of subsequent education, training or supported practice.[96]
Provision was also made for the physician to respond to the assessment before a recommendation was made to the appropriate Health Authority. It was considered that the Assessment Centre would consult widely before making its report.[97] To improve efficiency, some of the responses to the consultation suggested a wider remit for the centers, including retraining for re-entry physicians.
An important distinction was made between ability, which references support, education and training, in distinction to conduct which addresses contract. Appropriate standards of conduct would include those of the GMC.[98]Cited examples included sexual assault, fraud and regularly failing to turn up for a ward round or outpatient clinic.[99]
It was realized that suspensions would still be necessary at the local level, not as “a punishment but a necessary tool to ensure quality of care and a level of protection to patients.” However it was also felt that such a circumstance should become increasingly rare. In entertaining such an eventuality it was hoped that
“Employers will need to consider whether it is in the interests of patients, the investigative process or the doctor themselves to suspend the practitioner during such investigations and to consider whether alternatives to suspension would be more appropriate. Once a practitioner has been suspended, it is essential that investigations are dealt with speedily. Employers must combine the responsibility to protect the interests of patients with that of ensuring their employees are treated fairly and with the minimum of delay.”
Other sections of Assuring the Quality of Medical Practice dealt with monitoring the quality of care provided by the system. A key element of this being the Commission for Health Improvement (CHI)[100]. CHI’s role was to review each health area on a regular basis, the frequency depending on initial findings and subsequent events, highlighting areas of concern and areas that were exemplary with the intention of the system gaining as a whole. Where serious concerns were identified, then more in depth investigations are performed. The other factor in this strategy was called Supporting Performance Improvement[101], in essence establishing an organizational performance assessment framework, supporting improvement and providing for flexible degrees of central control vs. local autonomy based on the indicators. A Modernisation Agency[102] was formed to ensure dissemination of best practices, support those areas most needing remedy and training in clinical leadership and overseeing clinical governance.
The final area of reform was professional self-regulation, essentially the work of the GMC.[103] The key element here was to deal swiftly and effectively with those circumstances where there was clear evidence of a danger to patients in terms of a doctor’s fitness to practice. This included widening the powers of the GMC to enable it to be able “to impose interim suspension or conditions quickly, to stop a doctor who represents a danger to patients from practising until his fitness to practice has been determined.”
As with other aspects of NHS reform there would be an emphasis on increased patient and public input, in addition to greater transparency and accountability. For greater efficiency the various health regulators, such as the professional colleges were brought under an umbrella of health regulation.
The NHS summed up the impacts of these changes on the profession in three ways:
“1. Competent doctors have much to gain from these initiatives – in particular the public will be reassured and give them the trust and respect their high quality practice deserves.
2. For the minority who fall short of the standard, these measures offer support and help to put things right where possible rather than a regime of punishment. The new quality programme offers far more relevant learning and development opportunities, tailored to their needs and to those of the service.
3. Only the tiny number who do not put patients at the centre of their practice have any cause to be concerned about these reforms. Unacceptable practice of this kind needs to be stopped, as the profession itself makes clear, for example in the GMC’s document Good Medical Practice.”[104]
Clinical Governance
The philosophy underpinning and permeating the entire process is that of Clinical Governance.
“A significant first step has been the introduction of clinical governance, which
promotes a culture of patient-centred, accountable, safe and high quality healthcare delivery in an open and questioning environment.”[105]
Based on the concept of Corporate Governance (Cadbury Report)[106] and later extended to the public service, this concept came to light in the NHS in 1998 in Scally and Donaldson’s classic paper (see introduction to Implementation above), and rapidly became the driving force behind reform. While incorporating an earlier concept from the World Health Organisation and the literature on quality improvement.[107] It came to mean not only defining a culture but changing a culture. The resonance is not only organizational wide, developmental and accountable but positive in connotation.
All too commonly organisations have focused on, or have been focused on, monumental failures, with little transfer of information good or bad to the totality of the system. That is, there was an absence of a commitment to learn.
What distinguishes systems that work from systems that fail is their culture. A culture of continuous quality improvement is a culture of evaluation and learning. One in which there is an open and participative working environment where ideas are shared and where positive attributes are valued, and blame avoided. Where there is a commitment to make things better. Where boundaries and hierarchies are minimized, and authority is based on wisdom rather than by virtue of appointment. Health care systems have been characterized by a lack of expectation of leadership skills, and by competition rather than collaboration.
In a learning culture neither clinical nor management decisions can be based on opinion alone. All too often innovation or failure occur in system silos. Cultures of excellence not only value their workforce but let them know they are valued.[108]
Many of these concept and values exist in workforces but usually in a sporadic and fragmented manner rather than as a systematic philosophy and cohesive concept of management.
Subsequent events
The main developments since the publication of Assuring Quality in Medical Practice have been the Guidances from the NHS Executive, reports from the National Clinical Assessment Authority (NCAA), and the reports of the Auditor General and the Public Accounts Committee.
In addition, the background of evolving understanding of specific inquiries has had a profound effect on thinking in this area, particularly those into the Bristol Royal Infirmary[109], and Dr Harold Shipman.[110]
NHS Guidances and Directives
Current procedures for the management of discipline and suspension are laid out on the Department of Health’s website as Doctors and Dentists: Discipline and Suspension.[111] This has evolved piece by piece and was completed in February 2005 as Maintaining high professional standards in the modern NHS: Doctors' and dentists' disciplinary framework.[112]
This has a number of components:
Doctors' and dentists' disciplinary framework: introduction and explanatory note[113]
This introduces the system which came into force on April 1st 2004 for dealing with issues when they arise. By that time the NCAA had managed to find alternative solutions to 85% of the suspensions requested by health authorities. It directed that the word ‘suspension’ be no longer used other than for those instances where the GMC suspends a doctor’s license. This has been replaced by ‘exclusion from the workforce’.
It set out four key elements:
(i) Appraisal and Revalidation: giving ‘doctors an opportunity to reflect on their practice and discuss, with a suitably trained and qualified appraiser, any issues arising from their work, and their development needs’;
(ii) The role of the NCCA in reducing ‘the need to use disciplinary procedures to resolve problems’;
(iii) ‘Tackling the blame culture - recognising that most failures in standards of care are caused by systems' weaknesses not individuals per se’;[114]
(iv) ‘Abandoning the "suspension culture" by introducing the new arrangements for handling exclusion from work.
In terms of process, it recognised that the most essential element was ‘a co-ordinated process for handling concerns about the safety of patients posed by the performance of doctors and dentists’
“Whatever the source of this information the response must be the same - to ascertain quickly what has happened and the reasons; to determine whether there is a continuing risk; to decide whether immediate action is needed to remove the source of the risk; and to put in place action to tackle any underlying problem.
Under these new mechanisms, exclusion from work must be used only in the most exceptional circumstances. Exclusion of a practitioner is not a solution in itself. Furthermore periods away from work will be kept to the minimum through strong performance management arrangements which will ensure that progress is maintained and frequently reviewed. The exclusion will lapse and the practitioner will be entitled to return to work if the exclusion is not actively reviewed.”
Specific details are set out in accompanying documents.
Action when a concern arises[115]
The first part addresses the mechanism for dealing with concerns or allegations. In doing so it explicitly recognises that the potential for harm and the possibility of error in raising such issues.
“Unfounded and malicious allegations can cause lasting damage to a doctor's reputation and career prospects. Therefore all allegations, including those made by relatives of patients, or concerns raised by colleagues, must be properly investigated to verify the facts so that the allegations can be shown to be true or false.”
A case manager is appointed, and liaison is maintained with both NCAA and GMC. In many cases NCAA involvement is informal and advisory with the intent of avoiding more formal proceedings, but includes performance assessments where appropriate. An important aspect of this is distance from the events;
“The first stage of the NCAA's involvement in a case is exploratory- an opportunity for local managers to discuss the problem with an impartial outsider, to look afresh at a problem, see new ways of tackling it themselves, possibly recognise the problem as being more to do with work systems than doctor performance, or see a wider problem needing the involvement of an outside body other than the NCAA.”
A local case investigator will then conduct an inquiry over a maximum period of four weeks to decide on appropriate action, such as referral to an outside body. One reason why the NCAA strives to avoid exclusion is that;
“because it is much more difficult to assess a doctor who is excluded from practice than one who is working.”
Restriction of practice and exclusion from work[116]
The second part deals exclusively with those cases where some degree of patient protection is thought to be necessary, no matter how temporary. The key elements are;
(i) ‘exclusion from work is used only as an interim measure whilst action to resolve a problem is being considered’;
(ii) ‘where a practitioner is excluded, it is for the minimum necessary period of time: this can be up to but no more than four weeks at a time.’
“When serious concerns are raised about a practitioner, the employer must urgently consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the practitioner from the workplace.”
“Exclusion of clinical staff from the workplace is a temporary expedient. Under this framework, exclusion is a precautionary measure and not a disciplinary sanction. Exclusion from work ("suspension") should be reserved for only the most exceptional circumstances.”
“The purpose of exclusion is:
(a) to protect the interests of patients or other staff; and/or
(b) to assist the investigative process when there is a clear risk that the practitioner's presence would impede the gathering of evidence.”
“It is imperative that exclusion from work is not misused or seen as the only course of action that could be taken. The degree of action must depend on the nature and seriousness on the concerns and on the need to protect patients, the practitioner concerned and/or their colleagues.”
“Alternative ways to manage risks, avoiding exclusion, include:
· Medical or clinical director supervision of normal contractual clinical duties;
· Restricting the practitioner to certain forms of clinical duties;
· Restricting activities to administrative, research/audit, teaching and other educational duties. By mutual agreement the latter might include some formal retraining or re-skilling.
· Sick leave for the investigation of specific health problems.”
While allowing for a maximum period of exclusion of four weeks, the directive recommends “An initial ‘immediate’ exclusion of no more than two weeks if warranted.”
Any proceedings are subject to Chapter VI of the Charter of Fundamental Rights of the European Union[117]
Exclusions are also subject to a number of considerations. The first deals with the extent to which exclusion can fairly be taken:
“Practitioners should not be automatically barred from the premises upon exclusion from work. Case managers must always consider whether a bar from the premises is absolutely necessary. There are certain circumstances, however, where the practitioner should be excluded from the premises. This could be, for example, where there may be a danger of tampering with evidence, or where the practitioner may be a serious potential danger to patients or other staff. In other circumstances, however, there may be no reason to exclude the practitioner from the premises. The practitioner may want to retain contact with colleagues, take part in clinical audit and to remain up to date with developments in their field of practice or to undertake research or training.”
A second consideration dealt with availability for work, pay and the need for continuing professional development:
“As exclusion under this framework should usually be on full pay, the practitioner must remain available for work with their employer during their normal contracted hours….arrangements to ensure that the practitioner can keep in contact with colleagues on professional developments, and take part in Continuing Professional development (CPD) and clinical audit activities with the same level of support as other doctors or dentists in their employment. A mentor could be appointed for this purpose if a colleague is willing to undertake this role.”
While four week exclusions can be renewed, each renewal requires a formal process with identified steps to be taken at the end of 8 and 12 weeks, and no exclusion was to last more than 6 months other than where criminal investigations were involved.
In an accompanying agreement with the British Medical Association[118] it is stressed that:
“The focus is on helping doctors and dentists to keep up to date and to practice safely, not to punish them for any problems with clinical performance.”
Subsequent parts deal in depth with the conduct of hearings and disciplinary matters (Part III), procedures for dealing with issues of capability (Part IV); and handling concerns about a practitioner’s health (Part V).
Guidance on clinical academics
Finally the universities had made representations for special considerations for academic staff based in teaching hospitals. The Follett Report[119] arose from the Alder Hey inquiry. Drawing on a number of recent examinations of the role of academic staff, including the Nuffield Trust and Richards reports, Follett sought more explicit definition of accountability and appraisal given ‘the peculiar problems faced by clinical academics who appear to have two posts with separate employers and yet actually have a single professional job.’[120] It emphasises the need for a clear, harmonious and consistent framework from selection and appointment, accountability, appraisal, to the workings of any disciplinary process ‘that a clinical academic post is a single job held by a whole person, not two jobs held by two different half persons in one body’.[121]
One of the concerns expressed from the respective priorities of teaching hospitals and universities was that ‘there is a very real risk that the pressures of service delivery … and of the delivery of education and research on universities will result in them growing further apart.’[122]The authors noted that ‘the lines are traditionally blurred and the priorities interwoven.’ However they were very much aware that different facets of the employment responsibility were subject to different lines of accountability (clinical service, teaching and research).
Appraisal and performance review are at the heart of the document.[123] While there was agreement on a single appraisal process it was felt this should be a joint university/hospital function. With regards to disciplinary procedures[124], as with appraisal, the emphasis is on managing helping and remedy, rather than formal discipline. Interestingly they suggest abandonment of older concepts of personal and professional or personal misconduct, in favour of appraisal of health, conduct and capability. It was envisaged that both parties would be intimately involved in all aspects of the process.
Amongst their recommendations in this regard[125]were
“that the university and NHS body must establish absolutely clear and documented arrangements for dealing with the management of poor performance and for disciplinary matters of all types…Universities and NHS bodies should jointly prepare a formal agreement on the procedures for the management of poor performance and for discipline to be followed for senior NHS and university staff members with academic and clinical duties. As a minimum, these procedures should ensure joint working in the process from the time implementation of it is first contemplated; specify which body is to take the lead in different types of case; ensure suitable cross membership of disciplinary bodies; and be expeditious.”
Although the authors touched on grievances as an issue requiring joint management they did not offer any specific recommendations. With regards to implementation, they suggested a joint action plan between government departments of education and health.
As a result of this the Department of Health developed a separate framework for academic clinical staff[126], which essentially recognised the rights of both parties (universities and hospitals) to be engaged in any proceedings against a member of the staff.
National Clinical Assessment Authority (NCAA)
Established in 2001, the NCAA’s mission statement includes:
“Promoting the development of local and national procedures for preventing, identifying and resolving performance problems
Assessing individual doctors and dentists, and recommending practical ways in which their performance can be improved”.
NCAA now has experience of managing over 1,000 cases (1% of the workforce).[127] The sharing of good practice from across the system and an educational component including a web based toolkit are directed towards a goal of helping institutions ‘not to need us’. Only 6% of referrals required assessments. In 30% of exclusions in place at the time of referral, NCAA found there was no basis for this. Case studies included in their annual reports include providing support to overworked doctors, helping with interpersonal skills, improving management support of physicians, and improving recognized training deficiencies. The overall approach being getting people back to work, and resolving differences.
NCAA Toolkit
In 2004, a dynamic online Toolkit was developed for training and assistance of management in preventing and assessing performance concerns.[128]
Managing
The Toolkit is based on the premise that few managers are likely to have the skills and experience to deal with these sorts of problems, and embeds them in sound management and human resources principles. Simply stated, these are that ‘management relies on persuasion rather than directives and power’ and that employees need;
“to be recruited and inducted competently, into properly-defined jobs, given regular constructive feedback, helped with difficulties, deployed to make best use of their skills and encouraged to develop further”.
The Toolkit uses many actual situations as examples and is linked to a large number of organisational, communications and management resources, and is based on psychological research into working interactions.[129]
The Toolkit provides an excellent overview of leadership skills, team function[130] and personal and group development. One noteworthy observation is that sound human resources stewardship in health care systems is tied to clinical outcomes.[131]
“Team-working can improve service quality in many ways - even, in one study, reducing patient mortality. Yet caring for patients may not, on its own, be enough to make a group of people effective as a team. They need time to understand each others’ work methods and ways of thinking, away from patients and periodically outside the workplace as well.”
“Teams exist for purposes, one of which is quality assurance and performance management. The [organisation] needs everyone to take ownership of performance problems and contribute to solving them.”
The recommended approach places considerable emphasis on investing in people[132], coaching, mentoring and other supports. It identifies the organizational weaknesses which lead to conflict between colleagues and between clinicians and management;
“Some ‘performance problems’ have their origins simply in a clash of values between manager and clinician.”
stressing the need for clear, consistent and shared values[133], and suggesting constructive and proven means for resolving them, such as principled negotiation.[134]
“It must be clear that an organisation’s values statement is not just a PR device but a practical guide to decision-making.”
Alerting
The Toolkit also deals with ways of detecting problems, handling complaints and creating an open atmosphere in which concerns can be raised including situations where people who raise concerns about their own performance can be helped, and how to assist individuals with constructive feedback and guidance.
Investigating
In its guide to investigating concerns it draws important distinctions between asking a set of interrelated questions. What happened?, How did it happen?, Why did it happen?, and What might stop it happening again? Investigation is defined as ‘a careful search for the truth’ including determining the relevant components of system and individual failure. Initial questions might be;
“What has happened? What do we know? What else do we need to know to understand? Who is involved? Is there a continuing risk? Do we need to do anything immediately to protect patients? Do we need to involve anyone else?”
The GMCs Good Medical Practice[135] is suggested as a template. In considering possible causes for concerns, investigations routinely consider system problems, ill health, and victimisation and bullying.
“Differences in work style are normally expected by colleagues and tolerated. But sometimes a different style will attract criticism and come to be seen as a sign of poor performance. If the person first categorising performance as poor is influential, then others may take the same view.
Bullying can easily arise when people are intolerant and there is weak leadership. There is a large literature on bullying amongst health professionals, though this probably reflects growing awareness rather than increased occurrence… personality typing (perfectionism, self-criticism) also throws light on how colleague relationships can derail into victimisation and allegations of bullying when dominant or preferred work styles clash.”
This can be often unconscious. For instance enthusiasm can often make people around such a person feel demoralized.
Stress is placed on management having adequate training in investigative and interviewing techniques. In considering what actions might be taken, it is recognized that exclusion from work may sometimes be necessary as an interim measure in the interests of protecting public safety, but it is also pointed out that such circumstances are actually exceedingly rare.
Rebuilding
As with the spirit of the process, equal emphasis is placed on both investigation and rebuilding.
“People with skills are expensive to replace. It makes sense to try to rebuild a career rather than scrapping probably still useful experience, skills and knowledge. ‘Rebuilding’ accommodates many possibilities – rebuilding a career path, trust, a working relationship or a pattern of clinical practice. A suitable and effective performance solution might need all four.
…
If there has been a suspension or a breakdown in working relationships, re-entry into the clinical team will need to be planned and implemented. This is challenging work for managers. It may seem irritatingly expensive in training costs and management time, but it should still be cheaper than scrapping and replacing.
….
Rebuilding is right, humane and also required by the Code of Conduct for NHS managers which puts a duty on managers to help staff ‘maintain and improve their knowledge and skills and achieve their potential’. The Department of Health’s new framework for the handling of concerns about doctors and dentists also recognises the importance of ‘seeking to tackle performance issues through training or other remedial action rather than solely through disciplinary action’. The key questions for managers are therefore:
· Can an action plan be devised which will address the concern?
· Will the clinician cooperate?
…
As we are defining it, ‘rebuilding’ takes in all the processes needed to return a clinician to effective and safe working. These could include:
· Job adjustment - changes of duties, grading or specialty/sub specialty
· Additional training, probably supported by the local deanery and possibly with the relevant college, faculty or specialist society also giving advice
· Behavioural coaching, possibly with guidance from an occupational psychologist or other trainer
· Planned re-entry into the clinical team: organisational re-entry as distinct from clinical re-entry.
Putting together an action plan needs care and time, if it is to have the commitment of all parties.”
NCAA experience to date has shown that behavioural[136] as well as professional development is amenable to successful intervention;
“Behavioural coaching[137] is used widely for successful people – grooming managers for promotion, for example. One-to-one coaching for clinicians whose behaviour is causing problems can be just as valid an investment, though that is not to rule out simpler and cheaper solutions, such as shadowing. …One-to-one coaching sessions - possibly starting weekly and then reducing in frequency – can help an underperformer work through what has been going wrong and experiment with different behaviours. An external mentor could also be helpful, who need not be a clinician.
….
Group or team work may also be needed, with the clinician and immediate colleagues. As with other remediation elements outcome evaluation is essential, so negotiate that as part of the coaching package.”
Discipline
Recommendations for those cases that proceed on a disciplinary route, are that they follow ACAS[138] (Advisory, Conciliation and Arbitration Service) Code of Practice. These include the following principles;
· “Use procedures primarily to help and encourage employees to improve rather than just as a way of imposing a punishment
· Make sure that disciplinary action is not taken until the facts of the case have been established and that the action is reasonable in the circumstances
· Never dismiss an employee for a first disciplinary offence unless it is a case of gross misconduct
· Give the employee an opportunity to appeal
· Deal with the issues as thoroughly and promptly as possible
· Act consistently”
…..
“Where there appears to be serious misconduct, or risk to property or other people, a period of suspension with pay should be considered while the case is being investigated. This allows tempers to cool and hasty action to be avoided. Any suspension must be with pay unless the contract of employment allows suspension without pay, and any period of suspension should be as short as possible…..Do not use suspension as a sanction before the disciplinary meeting and decision and treat employees fairly and consistently.
…..
“Seek an external review if a disciplinary case is not concluded within [6] months. An external HR director might be asked to look at the case, for example.”
…..
“Recognise that events can move on and that formal disciplinary action, while initially appearing appropriate, may cease to be right. An alternative way of bringing the case to resolution must then be actively sought and found.”
Support
Finally the Toolkit draws attention to the responsibility to support physicians who have been made the subject of concerns. Reference is made to a NHS clinical practice guideline on psychological therapy and counseling in demonstrating benefit in terms of returning employees to work. Emphasis is placed on the difficulties involved in returning to the workforce after an absence, including a guidance on achieving this. The Royal College of Obstetrics and Gynaecology has also published a policy on this.[139]
NCAA Research
NCAA has commenced a number of important research projects into why things go wrong in health care and how to prevent and manage them. A new report released in November 2004, is ‘Understanding Performance Difficulties in Doctors’[140],[141] by Professor Jenny Firth-Cozens, which will be expanded into a book during 2005. The answers are not easy but complex, and are predicated on the fact that highly committed, conscientious, well intentioned and dedicated individuals run into problems for a variety of reasons, many of which are not of their own doing.
“Performance is affected by a complex interplay of personal and situational factors including organisational culture, physical environment, teamwork and leadership. Workload, sleep loss and shift patterns can all have a deleterious effect on clinical performance. Workload, for example, affects physical and mental ability in the form of decision making, attention span, fine motor control and level of motivation. Sleep loss increases the risk of human error and shift work can cause biological disruption which in turn may lead to impaired health and psychological well-being including ‘risky’ coping behaviours such as alcohol or drug misuse.”[142]
Taking the general principle that these are workplace issues, and therefore amenable to an occupational health perspective, these can best solved by into looking at the interaction between the individual and their environment.
They suggest 14 questions managers should ask to solve the problems of ‘Why did this happen?’ and ‘What interventions are appropriate?’, both at an individual and organisational level. These include evaluating physical health and disability, mental health, stress, life events, cognitive impairment, medications, substance use, personal characteristics, attitudes and behaviour, issues related to education and training, organisational culture, workload, team function, and leadership.
“We have provided an analysis of why the performance of a minority of doctors – intelligent individuals who have been sufficiently talented and motivated to complete demanding training and qualify as doctors – causes concern.”
The factors fall into three broad categories:
Individual factors
• Physical health
• Psychological health
• Cognitive function
• Personality, attitudes and behaviour
• Clinical knowledge and skills.
Factors associated with the work environment
• Teamworking
• Climate and culture
• Leadership
• Workload, sleep and shift-work.
Education, training and continuing professional development
• Selection of future doctors
• Undergraduate education
• Postgraduate training
• Continuing professional development (CPD).”[143]
In examining the role of the organisation in which the individual functions, the authors recognise that medicine is an environment associated with high levels of stress and burnout;[144]
“Organisational causes:
There is no doubt that the organisation plays a large part in the mental health of its staff.
Organisational causes of stress include all those which research shows lead to stress in workers in general: poor support from supervisors and managers; poor teamwork; lack of control over how the tasks are performed; overload and a lack of resources. Sleep loss has a significant effect in lowering mood. In addition, within medicine a major and increasing stressor includes a fear of making mistakes and of litigation and complaints. An organisational culture which is open and fair and where trust is high is likely to reduce this stressor.
Organisations may help to prevent high stress levels and promote mental health by good management practices and supportive cultures. The growing use of mentoring and coaching may also prove to have a preventive role.”…
“It is important that people and the way tasks are performed are not seen as problematic merely because they differ from those who are judging them. The Myers Briggs Type Inventory (MBTI) is a useful way of understanding normal differences which, used well, are necessary strengths in the workplace. When conflicts arise it is worth considering whether they are due more to different approaches and preferences of each party rather than the underlying personality of one. If overplayed, strengths can become problematic, but not irremediable. For example, confidence can become arrogance, diligence can become perfection and charm can become manipulation.”[145]…
“The evidence concerning culture, climate and organisational performance of hospitals is still largely indirect but is growing in strength. For example, there is some evidence concerning lower mortality in US hospitals which nurses perceive to be good places to work. ….
Also of growing importance, easier to measure, and likely to be affected by culture and leadership, are human resource management (HRM) practices. Studies outside health care have shown that better HRM practices are associated with higher levels of organisational productivity and effectiveness. Within health care there is a relationship between some HRM practices (such as the extensiveness and sophistication of appraisal, training and teamwork) and patient mortality.”[146] …
“A Culture of Safety
A safety culture is not separate from the general organisational culture but at its core. It involves fairness and openness, rather than blame, in dealing with adverse
incidents. The development of a safety culture requires trust and good leadership. Reliable organisations have the following cultural values:
Interpersonal responsibility
Person centeredness
Co-workers who are helpful and supportive of one another
Friendly, open and sensitive personal relations
Creativity
Goal achievement
Strong feelings of credibility and trust
Resilience.”[147]
…
“Can culture be changed?
Culture and climate can be changed when new leaders introduce different values and ways of working. The dramatic differences that result from external forces such as mergers show that cultural change is possible and can be remarkably fast. There is also evidence that culture can be extremely resistant to change during mergers unless work is specifically undertaken to improve it.”[148]
Despite the fact that most people who work in health care environments do so within various teams, to date there has been little data on how well teams function. However the data from the UK 2003 National Staff Survey of health care workers show that much less than half of them work in effective teams – those linked with productivity gains and service benefits.[149]
What are the key elements of an effective team?
“●Its task is defined and its objectives clear
●It has reasonably clear boundaries and is not too large (ideally fewer than 10 people)
●Its members know who leads it and the leadership is good
●There is participation in decision-making by all members, good communication, and frequent interaction between them
●It meets regularly to review its objectives, methods and effectiveness
●Its meetings are well conducted
●Its members trust each other and feel safe to speak their minds
●There is a shared commitment to excellence of patient care.”[150]
Group processes are well known to be powerful influences on individual performance. Effective teams function at a much higher level of quality care than any of the individuals within the team, and individuals in quality teams are significantly less stressed, which in itself is related to better patient care.[151]
Amongst those characteristics of teams that have been shown to impact most on individual performance are;
“●Diversity is important in teams, reflecting the complexity of service delivery and the heterogeneity of patients, and leading to better decision-making. However, diversity sometimes causes difficulties in the early days of team development
●Scape-goating – heaping onto one group member the problems of the team as a whole - is a well-established tendency of groups. Leaders and members need to be alert to this possibility or the real causes of poor performance may be missed
●The longer teams are together the better they perform, but this can be difficult for more transient members such as doctors in training
●Good leadership is essential to ensure that a team, and its individual members, perform well.”[152]
Our understanding of how leadership affects team function has also increased considerably.
“Leadership qualities affect the work of both the leaders themselves, and those whom they lead. When performance problems arise it is important to consider not only individuals’ characteristics and the context which may contribute to the problems, but also those of their superiors. There is growing evidence of direct and indirect links between the qualities of leaders and the quality of patient care. This occurs because leaders affect the performance of individuals and teams” [153]
Useful resources for clinical leadership have been gathered together in an NHS website.[154] Much of what we have to learn about optimizing the working environment in health care is simply a matter of testing and applying lessons learnt in the private sector.
In summary, the key elements are recognizing the roles of teams, organizational culture and leadership;
“The relative contributions of the individual practitioner and the environment in which he/she works should be taken into consideration when a doctor appears to be performing poorly.
Fewer patients die when they are looked after by well managed teams, which are also more cost-effective. The evidence points to the importance for patient outcomes of a culture that promotes patient safety. Effective leadership increases the performance of teams and reduces stress in team members. Teamwork, organisational culture and leadership can be improved by interventions to train and support leaders, and through team development and feedback.”[155]
Auditor General’s and Committee of Public Accounts Reports
Two subsequent reports investigated the situation from the perspective of public accountability.
The Comptroller and Auditor General issued his report in November 2003[156] which was followed by a report from the Committee of Public Accounts of the House of Commons in November 2004. [157]
The Auditor General’s office looked at exclusions from the work force between April 2001 and July 2002, and estimated the cost at ₤29 million for the 1,000 staff (0.14% of the workforce), not counting employment costs at full pay (₤11m), or settlement and retraining, in a total health budget of ₤55 billion While the terms of reference dealt primarily with the public costs, the report also addressed the human costs;
“there is also a loss of clinical skills as a result of the enforced absence, with staff being paid to stay at home and not normally allowed to treat patients. For the clinician, exclusion can result in reduced self-esteem and depression, and in some cases, the clinician may feel suicidal. The clinician's family can also be adversely affected. A number of clinicians never work again, even if they are exonerated by enquiries. Clinical staff may well have undertaken expensive training and, with shortages of many staff across the NHS, unnecessary exclusions or cases where clinicians consider they have been driven out of the health service are of concern, both in terms of personal fairness and equity, and waste of scarce resources.”[158]
These reports provide some perspective on progress and highlight ongoing problems. They also included a number of case studies. In looking at alternative actions to exclusion they noted;
“It may be possible to restrict some clinical activities, avoiding certain procedures or types of patient, whilst enabling an investigation to be conducted. Clinical staff may be able to undertake clinical audit or research activities, or attend training courses… A number of exclusions occur as a result of a breakdown in team working or personality clashes where there appears to be no risk to patients. Where there have been patient safety incidents, trusts have sometimes excluded clinicians despite evidence of systemic failures rather than individual shortcomings… [they] need to support excluded clinical staff to enable them to progress their continuing professional development. ”[159]
Amongst recommendations were involvement of the Royal Colleges in assessments, ensuring;
“systems are in place to provide support to staff so that they are successfully integrated back into clinical work…[and]…a support system for excluded staff which includes regular contact with a mentor to ensure their psychological well being is monitored and they have access to continuing professional development so their skill base is maintained.”[160]
In their sample some 40% of doctors and dentists returned to work. There was concern that management often acted in a ‘knee-jerk’ fashion without adequate inquiry.[161] In looking at the degree to which employers had followed government policies, they noted that another tool that employers had utilized were the services of another statutory authority, the Advisory, Conciliation and Arbitration Service (ACAS). Patient safety was not an issue in the majority of cases. In their interviews the survey team found employers frequently failed to adhere to best management practices. Nor did they find much evidence of management being held accountable, despite evidence of poor working relationships between management and medical staff.[162]
Many of these recommendations have now been incorporated into NHS policy.[163] However a year later the Committee of Public Accounts remained critical of the progress that was being made. It noted that under a system of government funded medicine, the Department of Health is effectively a monopoly employer, therefore ‘the burden of proof required to terminate a clinician’s contract on grounds of professional competence is high.’[164] In some workplaces the Committee were disturbed to note that there was effectively a ‘culture of fear’[165] not only among clinicians who felt victimized, but among those who had witnessed what had happened to colleagues who spoke out.
Amongst submissions to the committee was that of the Medical Protection Society, which defends doctors and which noted the devastating consequences of the use of exclusions.[166]
Case Study 1: Wendy Savage[167]
Mrs Wendy Savage was an obstetrician at the University of London, who had a somewhat controversial style. In particular she differed from many of her colleagues in championing minimum intervention in childbirth, and promoting vaginal delivery over caesarean section wherever possible. She was a strong patient advocate believing in patients making informed choices.
She had been appointed to her post in 1977. In 1983 a new, younger division head was appointed. During 1984 there were some disagreements between the two, and a colleague complained about the care of a patient. In 1985 her division head and the District Health Authority suspended her, based on what they considered to be incompetence, poor clinical judgement and exposure of patients to unnecessary risks and poor communication with colleagues such as to interfere with safe care. A court challenge was unsuccessful. Five cases were selected by the Health Authority as being representative of her practice, for criticism, however it acceded to a request for an inquiry to be in public.
Both sides retained expert witnesses who reviewed the cases with very different results. An external panel consisting of two obstetricians and a lawyer, was convened and conducted the inquiry in 1986. Her colleagues criticised her as defensive, and unwilling to accept fault, and to recognise concerns in others for patient safety. Because of the public nature of the inquiry, the subject of her practice, the nature of the controversy and the type of patients that she saw, the whole affair generated intense public interest with demonstrations, media coverage and questions in Parliament.
Later that year, the inquiry report was released. Essentially the panel concluded that there was no evidence of a systematic ‘aberration of clinical judgement’, although some decisions were described as being ‘close to the bounds of acceptable practice’. Nor did they find evidence of unacceptable exposure to risk. They found no evidence that the cases presented represented a pattern of unacceptable risk, and found evidence that when at fault, she willingly applied lessons learned to future practice. They found that Mrs Savage demonstrated an equal concern for patient safety as did her colleagues. The panel also rejected the allegation that she should be held personally responsible for all adverse events experienced by her patients, even when under the care of others. Nor did they find evidence that in her interactions with colleagues she endangered the delivery of safe care.
The Health Authority accepted to report and decided to reinstate her after a 15 month suspension. The Authority was, however left with the problem of trying to reintegrate a specialist into practice, following repudiation by her colleagues and superiors. They therefore appointed an advisory panel to “make recommendations on how professional working arrangements can properly be established within the department of obstetrics” the panel acknowledged that there “differences of opinion…about the emphasis given to various elements of acknowledged good practice” and that there had been a “breakdown in relationships”. The roots of this were considered to be that the division “lacked effective leadership and cohesion and a mechanism for resolving conflicts between colleagues”.
Noting that good practice requires “complete trust between the participants and at least a broad consensus on operational policies”, the panel concluded that the situation has arisen because “this broad consensus was missing and from a breakdown of trust between Mrs Savage and certain members of the team, particularly where her management of a complicated case has been unusual or unfamiliar”. It acknowledged that while, ideally, working arrangements should be resolved between professionals themselves “the situation in the obstetrics and gynaecology division has reached a point where the division itself cannot resolve its problems.”
The decision of the panel was to leave differences of opinion that might arise in future to an internal panel of specialists and the Dean, to resolve. It stated that consultants must adhere to joint policies and that in the situation where management might be considered unusual or unfamiliar, the consultant concerned would take personal and direct responsibility for the management. It suggested merging the division with another division “to give a wider perspective to its deliberations”. They also suggested that any “unresolved differences on clinical philosophy may be referred to the Royal College of Obstetricians and Gynaecologists” (which was represented on the panel). Finally it drew the attention of those involved to the professional ethic that “As required by the General Medical Council in its guidance to the profession, medical practitioners involved in these arrangements must refrain from depreciating the professional skills and services of others.”
The panel was realistic enough to note that “it may well take a little time to establish professional working relationships and the teamwork required. Success will require the sincere determination of all parties to work in harmony, with tolerance and respect for each other’s viewpoints. We trust that in the interests of the women of Tower Hamlets they will do so.”
It was decided that in was in the public interest to publish the report and the Health Authority’s response.[168] The Authority responded that it “requires the consultants in obstetrics and gynaecology and their colleagues to make working arrangements as recommended…within one week. The Authority appreciates the feelings of the consultants in this matter but asks them to find it in their hearts to make these arrangements in order to serve the local community”.
Mrs Savage returned to work, nobody left, and the affair became a national legend, particularly with regard to women’s right to choose. There continued to be considerable public comment on the flawed process which led a public body to expend large amounts of resources[169] on prosecuting what were essentially differences in opinion and personality.
As Savage herself put it “if we ignore the history of this affair we will be condemned to repeat it. Unless the fundamental issues are dealt with doctors who are guilty of nothing more than having a different approach from that of some of their colleagues will continue to suffer as I have done”.[170]
Mrs Savage has now retired and works as a screener for complaints to the GMC.
Case Study 2: Bristol Royal Infirmary
A new anaesthetist in the paediatric cardiac surgery unit in 1988 noted procedures that seemed unfamiliar to him and a higher operative mortality than he was used to seeing. Two years later he started to voice his concerns. The hospital admitted there were problems in 1995. In 1996 parents wrote to authorities asking for a review. Preliminary investigations in 1997 suggested that the mortality rate was exceptionally high. The CEO and the two surgeons involved were referred to disciplinary procedures. An independent inquiry was announced. In 1998 the three people charged with misconduct were found guilty and disciplined.
The Kennedy inquiry heard evidence between 1998 and 2001, and released its report in 2000[171]. Many recommendations were planned and implemented, and a formal response, ‘Learning from Bristol’ was published in 2002.[172] The implications of the inquiry continue to reverberate.[173]
While many were expecting a “stinging attack”[174] what emerged was a remarkable insight into where things go wrong in health care systems that has formed the basis for all subsequent inquiries. Unfortunately the immediate impact of the Bristol ‘scandal’ had been a sharp rise in disciplinary actions against doctors.[175] The Kennedy report helped to rebalance the perspective, marking a transition from a ‘culture of blame’ to a culture of understanding and learning.
The report’s summary addresses the fundamental issues;
“Synopsis
The story of the paediatric cardiac surgical service in Bristol is not an account of bad people. Nor is it an account of people who did not care, nor of people who wilfully harmed patients.
It is an account of people who cared greatly about human suffering, and were dedicated and well-motivated. Sadly, some lacked insight and their behaviour was flawed. Many failed to communicate with each other, and to work together effectively for the interests of their patients. There was a lack of leadership, and of teamwork.
It is an account of healthcare professionals working in Bristol who were victims of a combination of circumstances which owed as much to general failings in the NHS at the time than any individual failing. Despite their manifest good intentions and long hours of dedicated work, there were failures on occasion in the care provided to very sick children. ….
It is an account of a time when there was no agreed means of assessing the quality of care. There were no standards for evaluating performance. There was confusion throughout the NHS as to who was responsible for monitoring the quality of care.
It is an account of a hospital where there was a `club culture'; an imbalance of power, with too much control in the hands of a few individuals. …
And it is an account of a system of hospital care which was poorly organised. It was beset with uncertainty as to how to get things done, such that when concerns were raised, it took years for them to be taken seriously.[176] ….
The circumstances of Bristol, and the NHS, at the time, led to the system for providing paediatric cardiac surgery (PCS) being flawed. All of these flaws, taken together, led to around one-third of all the children who underwent open-heart surgery receiving less than adequate care. “[177]
This represented a fundamental shift from inquiries that allocated blame to those that sought an understanding, in order to reduce repetitive episodes.
“We adopt a `systems' approach to analysis, by which poor performance and errors are seen as the product of systems which are not working well, as much as the result of any particular individual's conduct.”[178]
Amongst the findings the report addressed the crucial functions of teamwork and leadership;
“We reach one conclusion which owes nothing to hindsight. There was poor teamwork and this had implications for performance and outcome. The crucial importance of effective teamwork in this complex area of surgery was very widely recognised…. All the professionals involved in the PCS service were responsible for this shortcoming. But, in particular, this poor teamwork demonstrates a clear lack of effective clinical leadership. Those in positions of clinical leadership must bear the responsibility for this failure and the undoubtedly adverse effect it had on the adequacy of the PCS service.”[179]…
“What was unusual about Bristol was that the systems and culture in place were such as to make open discussion and review more difficult. Staff were not encouraged to share their problems or to speak openly. Those who tried to raise concerns found it hard to have their voice heard…. there was power but no leadership. The environment was one in which problems were neither adequately identified nor addressed.”[180]…
“We cannot say that the external system for assuring and monitoring the quality of care was inadequate. There was, in truth, no such system.”[181]
The guiding principles on which recommendations were made included;
“· Patients must be at the centre of the NHS, and thus the patient's perspective must be included in the policies, planning and delivery of services at every level.
· The dedication and commitment of NHS staff is and must remain at the core of the service.
· The quality of healthcare must include all aspects of care: clinical and non-clinical.
· Patients' safety must be the foundation of quality.
· Systems of care, and facilities, as well as individuals, affect the quality of healthcare.
· Learning from error, rather than seeking someone to blame, must be the priority in order to improve safety and quality.
· Openness and transparency are as crucial to the development of trust between healthcare professional and patient, as they are to the trust between the NHS and the public.”[182]
Amongst the many recommendations were;
“Safety: …For the future, the NHS must root out unsafe practices. It must remove barriers to safe care. In particular, it must promote openness and the preparedness to acknowledge errors and to learn lessons. Healthcare professionals should have a duty of candour to patients. Clinical negligence litigation, as a barrier to openness, should be abolished. Safe care should be promoted[183]….”.
“The culture of the NHS
The culture of the future must be a culture of safety and of quality; a culture of openness and of accountability; a culture of public service; a culture in which collaborative teamwork is prized; and a culture of flexibility in which innovation can flourish in response to patients' needs.”[184]
“Respect and honesty
Patients in their journey through the healthcare system are entitled to be treated with respect and honesty and to be involved, wherever possible, in decisions about their care
The quality of healthcare would be enhanced by a greater degree of respect and honesty in the relationship between healthcare professional and patient. Good communication is essential, but as the Royal College of Surgeons of England told us: `... it is the area of greatest compromise…and the source of most complaints'.[185]
Partnership between patient and healthcare professional is the way forward. The exchange and provision of information is at the core of an open and honest relationship between healthcare professionals and patients. There are four fundamental principles which should in future underpin any policy aimed at meeting patients' needs for information. First, trust can only be sustained by openness. Secondly, openness means that information be given freely, honestly and regularly. Thirdly, it is of fundamental importance to be honest about the twin concerns of risk and uncertainty. Lastly, informing patients…must be regarded as a process and not a one-off event.”[186]…
“The safety of care
….
The components of safe care are much more than the actions or competence of healthcare professionals: they include the physical environment, equipment, working arrangements, teamwork and good communication.
The NHS is still failing to learn from the things that go wrong and has no system to put this right. This must change.
A culture of safety in which safety is everyone's concern must be created. Safety requires constant vigilance. Given that errors happen, they must be analysed with a view to anticipate and avoid them.
A culture of safety crucially requires the creation of an open, free, non-punitive environment in which healthcare professionals can feel safe to report adverse events and near misses (sentinel events). …
The culture of blame is a major barrier to the openness required if sentinel events are to be reported, lessons learned and safety improved. The system of clinical negligence is part of this culture of blame….It should be replaced by effective systems for identifying, analysing, learning from and preventing errors and other sentinel events.”[187]
“Clinical standards for the care of patients
For the future, standards for clinical care must be set [and] must be patient-centred. They must not be the product of individual professional groups talking to themselves.”[188]
Finally, on public input and empowerment;
“Public involvement through empowerment
The public are entitled to expect that means exist for them to become involved in the planning, organisation and delivery of healthcare
A patient-centred service is one that is designed and planned to address the needs of the particular sectors of the public it exists to serve. Strategic planning at national level, and decisions at local level must involve the public.
In its everyday working the NHS must take account of and respond to the interests and needs of the public.
The public must be involved in those processes designed to secure the competence of healthcare professionals
The principles which should inform future policy about involving the public and patients in the NHS include:
Patients and the public are entitled to be involved wherever decisions are taken about care in the NHS.
The involvement of patients and the public must be embedded in the structures of the NHS and permeate all aspects of healthcare.
The public and patients should have access to relevant information.
Healthcare professionals must be partners in the process of involving the public.
There must be honesty about the scope of the public's involvement, since some decisions cannot be made by the public.
There must be transparency and openness in the procedures for involving the public and patients.
The mechanisms for involvement should be evaluated for their effectiveness.
The public and patients should have access to training and funding to allow them fully to participate.
The public should be represented by a wide range of individuals and groups and not by particular `patients' groups'.
The priority for involving the public should be that their interests are embedded into all organisations and institutions concerned with quality of performance in the NHS: in other words, the public should be `on the inside', rather than represented by some organisation `on the outside'.”[189]
The Kennedy inquiry made a conscientious effort to make their report definitive, not just for the management, staff and public in Bristol, but the entire health care system, a generalisability concept that came to be known as ‘An Organisation with a Memory’[190]. They strove to understand the actions of individuals within their environment, and what were the factors that drove them to make certain decisions and take certain actions. Actions which at worst they were to describe as “individuals who, in our view, could and should on occasions have behaved differently”.[191]
The issues, as always were complex, and multifaceted.
“There are no right answers; just, perhaps, less wrong answers.[192]…the recommendations are interlocked and interrelated. They are parts of a jigsaw: each needs t other to complete the picture[193]”
However, lessons learned from Bristol underpin almost every reform in the NHS since then.
Australia
Australia has had its share of problems in health care, including the King Edward Memorial Hospital inquiries in Perth[194], resulting in the Douglas Report and subsequent disciplinary hearings and Government responses. This found widespread system and cultural failures in the delivery of services despite repeated complaints and investigations.
In response to this and other[195] developments both within Australia and globally, a number of national initiatives were undertaken.
In parallel with similar initiatives in other countries a Patient Safety Foundation[196] was established and the Australian Council for Safety and Quality in Health Care[197] developed standards for open disclosure of incidents in 2003.[198] This follows the same concept as in the UK of providing a supportive environment as opposed to a punitive one (while preserving accountability).
Other recent initiatives in this area include gathering evidence during 2004 for a ‘Review of Future Governance Arrangements for Safety and Quality in Health Care’.[199]. A draft National Patient Safety Education Framework (2004)[200] addresses many additional areas such as the role of teamwork, leadership, conflict resolution, organisational theory, factors that influence performance, fitness to practice and ethics. However no formal national framework for managing concerns exists yet.
This has become a more pressing matter since the release of the report of the Walker inquiry report in 2004.[201]
Case Study: Walker Inquiry
Four nurses acted as ‘whistleblowers’ in a group of two hospitals forming an outer Sydney health service area in New South Wales (Camden and Campbelltown Hospitals) in November 2002. Their complaints of unsafe and inadequate care were then investigated by the Health Care Complaints Commission (HCCC) which reported in December 2003 ‘substantiating’ the allegations.[202],[203]
Following considerable concerns about the HCCC process and report, a special commission was convened in the same month and reported in June 2004. This commission found considerable fault with the original process. In particular it noted procedural unfairness and ‘deplorable delay’. Subsequently the HCCC commissioner was dismissed. A parliamentary committee also sharply criticised ‘unacceptable delays in investigations’. New performance standards have been put in place.
Under Australian Law, there is a duty of procedural fairness even where legal rights are not affected but reputation may be.[204] The HCCC undeniably violated that. In the final report of the inquiry, the commission was critical of the relationship between disciplinary processes and quality of care.
“Insensitive or overly vindictive disciplinary action can be counter-productive in relation to the overall improvement of health care standards.”
Conclusions
Our thinking about improving quality of care, patient safety, medical error, professional development and regulation, physician wellness and the healthy workplace are converging, but lack a comprehensive framework in most jurisdictions. The evolution has incorporated research into organisational theory, management, team function, human resources, occupational health and psychology, and conflict management.
Appropriately managed, health care settings can develop continuous quality improvement minimise concerns arising from the workplace, and when they do occur, deal with them constructively in a way that minimises disruption of the delivery of care, conserves resources and prevents repetitive problems.
Traditional models for dealing with concerns were reactive, adversarial and punitive, created a false sense of reassurance in terms of the maintenance of quality care, and of protecting the public and were resource intensive. Consequently their impact was more often counterproductive than not.
Often the only recourse health care systems and regulatory bodies had for dealing with concerns were traditional disciplinary structures. Many regulatory authorities have moved towards alternative dispute resolution methods and away from confrontation, in their complaints mechanism.
With appropriate proactive policies, there should be little need for disciplinary procedures which are best reserved for gross misconduct and should apply equitably across the workforce.
Situations in which exclusion from the workforce (suspension) are felt to be the only feasible alternative, should be an extraordinary occurrence, and should be for a minimal period. Clinicians need to be viewed as resources and investments.
Factors involving performance are complex and most frequently reflect an interaction between those that are intrinsic to the individual, and their interaction with external factors.
Assessments and investigations are best managed by bodies external to the organisation to minimise bias and maximise expertise.
Finally the unique situation of university teaching hospitals must be recognised, not only because there is an additional chain of command, but because of the need to consider and protect research and teaching commitments.
Dr Michael Goodyear
Department of Medicine, Dalhousie University
Appendix I: Selected Quotations
Good education and training relevant to the needs of the modern health service, reinforced by continuing learning and professional development throughout a career are the cornerstone to preventing poor individual performance… Clinical audit is an effective tool for reflecting on and improving care. Significant event reporting can help to celebrate good care whilst also identifying opportunities for improvement.
British Medical Association[205]
We believe it is extremely important that proposals recognise the organisational aspects of dealing with poor performance , which may not simply be a result of individual practice but flow from problems associated with organisational culture , managerial or leadership issues.
NHS Confederation[206]
The early detection of… lowered standards is important, but this must be matched by immediate and focused help with retraining, counselling and mentorship… There is, I believe, general support for local arrangements to assist doctors in difficulties which are external …but at the level of a Region …with close links to Regional Advisors and Programme Directors and with established procedures for remedial training….Examination of performance must be carried out within the doctor's working environment.
Royal College of Psychiatrists[207]
The importance of early detection together with the emphasis on rehabilitation and educational
solutions rather than disciplinary ones is also welcomed.
Joint Consultants’ Committee[208]
It is crucial that…the stigma of having one's clinical performance questioned is removed…. BAMM has discussed this issue at some length. The view is that these …centres could conceivably provide a service that is wider than dealing with poorly performing doctors… including those returning to medicine after a career break, those keen to enter a different stream of a specialty….
British Association of Medical Managers[209]
Criminals who commit serious offences are treated better than suspended doctors..lives and careers are wrecked
Baroness Knight of Collingtree[210]
It [suspension] introduces an immediate stigma, increases the degree of confrontation, and makes informal and agreed solutions much more difficult.
Dr Liam Donaldson, Regional Medical Officer, Northern and Yorkshire Health Authority[211]
Many of these disciplinary actions are inspired by professional jealousies and personal grudges, and the whole business then becomes a profoundly wasteful business.
Dr Peter Tomlin, Chair, Society of Clinical Psychiatrists Study Group[212]
Some colleagues regard a different style of clinical practice as incompetence..motives included …professional jealousy, and power struggles…it is easy to dress up allegations so that an administrator suspends the doctor first and investigates afterwards
Dr Peter Tomlin[213]
Insensitive or overly vindictive disciplinary action can be counter-productive in relation to the overall improvement of health care standards.
Walker Inquiry: Special Commission of Inquiry into Campbelltown and Camden Hospitals,
Government of New South Wales, Australia, June 30th 2004.
Draconian measures have a tendency to lower the safety culture.
Professor Firth-Cozens 2004[214]
If disciplinary action is taken – action that may, in fact, be counter-productive to creating a positive change in physician behaviour.
College of Physicians and Surgeons of Alberta[215]
The loss of my job was like a bereavement. Powerful, confusing and shifting emotions swept over me - disbelief (can this really be happening?), sadness, guilt, self-doubt and anger.
Professor Wendy Savage[216]
If we ignore the history of this affair we will be condemned to repeat it. Unless the fundamental issues are dealt with doctors who are guilty of nothing more than having a different approach from that of some of their colleagues will continue to suffer as I have done.
Professor Wendy Savage[217]
As required by the General Medical Council in its guidance to the profession, medical practitioners involved in these arrangements must refrain from depreciating the professional skills and services of others.
Munro Report , October 25 1986[218]
Poor performance and errors are seen as the product of systems which are not working well, as much as the result of any particular individual's conduct.
Kennedy Report, July 2001[219]
Learning…, rather than seeking someone to blame, must be the priority in order to improve safety and quality
Kennedy Report
Openness and transparency are as crucial to the development of trust between healthcare professional and patient, as they are to the trust between the NHS and the public.
Kennedy Report
Partnership between patient and healthcare professional is the way forward. The exchange and provision of information is at the core of an open and honest relationship between healthcare professionals and patients.
Kennedy Report
There are four fundamental principles which should in future underpin any policy aimed at meeting patients' needs for information. First, trust can only be sustained by openness. Secondly, openness means that information be given freely, honestly and regularly. Thirdly, it is of fundamental importance to be honest about the twin concerns of risk and uncertainty. Lastly, informing patients…must be regarded as a process.
Kennedy Report.
It is an account of a hospital where there was a `club culture'; an imbalance of power, with too much control in the hands of a few individuals.
Kennedy Report
Those who tried to raise concerns found it hard to have their voice heard…. there was power but no leadership. The environment was one in which problems were neither adequately identified nor addressed.
Kennedy Report
People with skills are expensive to replace. It makes sense to try to rebuild a career rather than scrapping probably still useful experience, skills and knowledge.
National Clinical Assessment Authority[220]
Rebuilding is right, humane and also required by the Code of Conduct for NHS managers which puts a duty on managers to help staff ‘maintain and improve their knowledge and skills and achieve their potential’.
National Clinical Assessment Authority[221]
Some ‘performance problems’ have their origins simply in a clash of values between manager and clinician.
National Clinical Assessment Authority[222]
Teams exist for purposes, one of which is quality assurance and performance management. The [organisation] needs everyone to take ownership of performance problems and contribute to solving them.
National Clinical Assessment Authority[223]
It must be clear that an organisation’s values statement is not just a PR device but a practical guide to decision-making.
National Clinical Assessment Authority[224]
Differences in work style are normally expected by colleagues and tolerated. But sometimes a different style will attract criticism and come to be seen as a sign of poor performance. If the person first categorising performance as poor is influential, then others may take the same view.
National Clinical Assessment Authority[225]
It is important that people and the way tasks are performed are not seen as problematic merely because they differ from those who are judging them…normal differences which, used well, are necessary strengths in the workplace. When conflicts arise it is worth considering whether they are due more to different approaches and preferences of each party rather than the underlying personality of one.
National Clinical Assessment Authority[226]
Exclusion of clinical staff from the workplace is a temporary expedient…a precautionary measure and not a disciplinary sanction. Exclusion from work ("suspension") should be reserved for only the most exceptional circumstances.
Department of Health (England), 2004[227]
A number of exclusions occur as a result of a breakdown in team working or personality clashes where there appears to be no risk to patients. Where there have been patient safety incidents, trusts have sometimes excluded clinicians despite evidence of systemic failures rather than individual shortcomings… [they] need to support excluded clinical staff to enable them to progress their continuing professional development.
Auditor-General’s Office, 2003[228]
Systems are in place to provide support to staff so that they are successfully integrated back into clinical work…[and]…a support system for excluded staff which includes regular contact with a mentor to ensure their psychological well being is monitored and they have access to continuing professional development so their skill base is maintained.
Auditor-General’s Office, 2003
The NHS is in effect a monopoly employer, so the burden of proof required to terminate a clinician’s contract on grounds of professional competence is high.
Committee of Public Accounts, House of Commons: The management of suspensions of clinical staff in NHS hospitals and ambulance trusts in England. November 2004
Cultures of blame, authoritarianism, narrow mindedness and reckless disregard for staff are not to be tolerated… the model which emerges here is one of down-to-earth decency, humanity, humility, sensitivity and respect for others, but this is no soft option.
Beverley Alimo-Metcalfe, Professorship of Leadership Studies, Leeds University. 2000[229]
Appendix II: Supplementary papers
Goodyear M. Conflict Management in Health Care Teams: A new paradigm - Safer care: Saving costs August 2006 http://myweb.dal.ca/mgoodyea/files/conlict.doc
Goodyear M. Conflict Management in Health Care Teams: A new paradigm - Safer care: Saving costs August 2006 http://myweb.dal.ca/mgoodyea/files/conflict.doc
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[3] Supporting Doctors, Protecting Patients 1999 p39
[4] Building a Safer System. National Steering Committee on Patient Safety. Ottawa 2002. Executive Summary viii Recommendation 5. http://rcpsc.medical.org/publications/building_a_safer_system_e.pdf
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[6] Ibid 7
[7] Ibid 11
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[11] Ibid 16
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[39] The Royal Liverpool Children’s Inquiry – Report and Summary and Recommendations (The Redfern Report) HMSO 30 January 2001 (HC 12-1)
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[48] Suspensions - a new perspective: Report of the short-life working group on suspension of medical and dental staff. Scottish Office, Department of Health 1999. (Circular PCS(DD)1999/7, 6 April 1999.
[49] Supporting doctors Foreword p3
[50] Ibid 7
[51] Ibid 37
[52] A Savage inquiry
[53] See Auditor General’s and Committee of Public Accounts Reports
[54] Supporting doctors p8
[55] Ibid 9
[56] Ibid 40
[57] The New NHS Modern, Dependable. Department of Health 1997. http://www.archive.official-documents.co.uk/document/doh/newnhs/newnhs.htm
[58] Supporting Doctors Ibid 11
[59] Ibid 19
[60] Ibid 34
[61] Improving the Health of the NHS Workforce- Report of the Partnership on the Health of the NHS Workforce Nuffield Trust, 1998
[62] Dr Eva Grunfeld, Cancer Care Nova Scotia, Personal Communication.
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[66] Supporting Doctors Ibid 63
[67] Ibid 31
[68] Ibid 37
[69] Ibid 39
[70] Ibid 50
[71] Ibid 55
[72] Ibid 56
[73] Ibid 58
[74] Ibid 59
[75] Ibid 60
[76] Ibid 78
[77] Ibid 70
[78] Ibid 72
[79] Ibid 78
[80] Ibid 74
[81] Subsequently (2004) the Healthcare Commission
http://www.healthcarecommission.org.uk/Homepage/fs/en
[82] Supporting Doctors Ibid 75
[83] Ibid 77
[84] Assuring the Quality of Medical Practice: A summary of the responses to Supporting Doctors, protecting patients. NHS Executive 2001.
[85] Appendix: Selected Quotations
[86] Assuring the quality of medical practice: Implementing Supporting doctors protecting patients. Department of Health 2001 http://www.dh.gov.uk/assetRoot/04/08/46/19/04084619.pdf
[87] http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4006902&chk=j2Tt7C also HSSC 1998/113 http://www.dh.gov.uk/assetRoot/04/01/18/33/04011833.pdf
[88] Report of an expert group on learning from adverse events in the NHS chaired by the Chief Medical Officer http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4065083&chk=PARoiF
[89] "A framework through which NHS organisations are accountable for continually improving the quality of their services and safeguarding high standards of care by creating an environment in which excellence in clinical care will flourish."
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[90] Assuring the quality of medical practice 11
[91] http://www.ncaa.nhs.uk/
[92] http://www.cgsupport.nhs.uk/
[93] Assuring the quality of medical practice 13
[94] Ibid 20
[95] Ibid 21
[96] Ibid 22
[97] Ibid 23
[98] Good Medical Practice. GMC http://www.gmc-uk.org/standards/good.htm
[99] Assuring the quality of medical practice 24
[100] Ibid 26
[101] Ibid 27
[102] http://www.modern.nhs.uk/home/default.asp?site_id=58
[103] Assuring the quality of medical practice Ibid 28
[104] Ibid 31
[105] Ibid 32
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[114] It is important to realise that moving away from blame does not mean abandoning accountability, which is a separate issue.
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[120] Ibid p6
[121] Ibid p8
[122] Ibid p10
[123] Ibid p15
[124] Ibid p19
[125] Ibid p20
[126] Maintaining high professional standards in the modern NHS: Guidance on clinical academics. Department of Health April 2004. http://www.dh.gov.uk/assetRoot/04/08/06/78/04080678.PDF
[127] NCAA 2003/4 Annual Report
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[133] Pendleton D, King J. Values and leadership. BMJ 325: 1352-1355, 2002
[134] http://www.ncaa.nhs.uk/toolkit/viewdoc.asp?load=true&file=PDF/Developing%207%20-%20Principled%20negotiation.pdf
[135] http://www.gmc-uk.org/standards/good.htm.
Supplementary codes now exist for specialist physicians:
http://www.rcplondon.ac.uk/files/GoodMedicalPracticeForPhysicians.pdf, and for the various medical subspecialties, e.g Medical Oncology: http://www.rcplondon.ac.uk/files/gmpfp_ap13_medicaloncology.pdf
[136] 68% of referrals involve behaviour
[137] Behavioural Coaching: http://www.behavioral-coaching-institute.com/Resources.html
[138] Advisory Handbook – Discipline & Grievances at Work: http://www.acas.org.uk/publications/h02.html
[139] http://www.rcog.org.uk/mainpages.asp?PageID=773
[140] http://www.ncaa.nhs.uk/pubs/other/NCAA_Report_Understanding_Performance_Difficulties_in_Doctors.pdf
[141] http://www.ncaa.nhs.uk/pubs/other/Bibliography_Understanding_Performance_Difficulties_in_Doctors.pdf
[142] Ibid 4
[143] Ibid 43
[144] Ibid 13
[145] Ibid 21
[146] Ibid 28
[147] Ibid 29
[148] Ibid 30
[149] Ibid 35
[150] Ibid 36
[151] Ibid 37
[152] Ibid 37
[153] Ibid 43
[154] http://www.healthcareskills.nhs.uk/teams-leadership.html
[155] Understanding Performance Difficulties in Doctors 44
[156] The Management of Suspensions of Clinical Staff in NHS Hospital and Ambulance Trusts in England Report By The Comptroller And Auditor General HC 1143 Session 2002-2003: 6 November 2003 http://www.nao.org.uk/publications/nao_reports/02-03/02031143.pdf
[157] The management of suspensions of clinical staff in NHS hospitals and ambulance trusts in England. Committee of Public Accounts, House of Commons. Forty–seventh Report of Session 2003–04 HC296 November 2004 http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubacc/296/296.pdf
[158] Auditor General’s Report 2003 p2
[159] Ibid 5
[160] Ibid 9
[161] Ibid 25
[162] Ibid 32
[163] Committee of Public Accounts 2004 p4
[164] Ibid 7
[165] Ibid. Evidence Mr Richard Bacon MP Q59
[166] Ibid Evidence 13
[167] Savage W: A Savage Enquiry Virago Press 1986.
[168] Advisory panel’s report to Tower Hamlets District Health Authority. BMJ 293: 1091-1092, 1986
[169] The trial of Mrs Wendy Savage. Lancet ii: 986, 1986
[170] Savage W. The Savage inquiry: a personal reply. BMJ 294: 775, 1987
[171] Learning from Bristol: the report of the public inquiry into children's heart surgery at the Bristol Royal Infirmary 1984 –1995 Command Paper: CM 5207 http://www.bristol-inquiry.org.uk/
[172] Learning from Bristol: Department of Health’s Response January 2002 http://www.dh.gov.uk/assetRoot/04/05/94/79/04059479.pdf
[173] Keogh B, Spiegelhalter D, Bailey A, Roxburgh J, Magee P, Hilton C. The legacy of Bristol: public disclosure of individual surgeons' results. BMJ. 2004 Aug 21;329(7463):450-4.
[174] Keogh op cit 450
[175] Doctor suspensions soar in wake of Bristol scandal. BBC 15 march 1999 http://news.bbc.co.uk/1/hi/health/background_briefings/the_bristol_heart_babies/163546.stm
[176] Learning from Bristol Summary 3-5, 7-8, 10-11
[177] Ibid 11
[178] Ibid 21
[179] Ibid 24
[180] Ibid 26-7
[181] Ibid 30
[182] Ibid 51
[183] Ibid 14
[184] Ibid 59
[185] Ibid 60
[186] Ibid 62
[187] Ibid 81-84, 86
[188] Ibid 92
[189] Ibid 98-102
[190] http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4065083&chk=PARoiF
[191] Learning from Bristol Summary 43
[192] Ibid Recommendations at 434
[193] Ibid at 436
[194] Inquiry into obstetric and gynaecological services at King Edward Memorial Hospital 1990-2000 http://www.health.wa.gov.au/kemhinquiry/
[195] Faunce TA, Bolsin SN. Three Australian whistleblowing sagas: lessons for internal and external regulation. Med J Aust. 2004 Jul 5;181(1):44-7.
[196] http://www.apsf.net.au/
[197] http://www.safetyandquality.org/
[198] Open Disclosure Standard: A National Standard For Open Communication In Public And Private
Hospitals, Following An Adverse Event In Health Care. Australian Council For Safety And Quality In Health Care January 2003 http://Www.Safetyandquality.Org/Articles/Publications/Opendisclosure_Web.Pdf
[199] http://www.health.gov.au/internet/wcms/publishing.nsf/Content/health-sqreview.htm
[200] http://www.patientsafety.org.au/
[201] Special Commission of Inquiry into Camden and Campbelltown Hospitals http://www.findlaw.com.au/articles/default.asp?task=read&id=11894&site=GN
[202] Eagar K. The weakest link? Aust Health Rev. 2004;28(1):7-12.
[203] Holland J. HCCC Report and special commission of inquiry into Camden and Campbelltown Hospitals and Macarthur Health Service. Australian Health Law Bulletin 12(7): April 2004
[204] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
[205] Response to Supporting doctors, protecting patients
[206] Response to Supporting doctors, protecting patients
[207] Response to Supporting doctors, protecting patients
[208] Response to Supporting doctors, protecting patients
[209] Response to Supporting doctors, protecting patients
[210] Debate, Suspension of hospital doctors Bill, House of Lords 2000. BMJ 321: 72, 2000.
[211] BMJ 308: 1277-82, 1994
[212] BMJ 321: 72, 2000
[213] BMJ 317: 812, 1998
[214] Qual Saf Health Care 13: 58, 2004
[215] College of Physicians and Surgeons of Alberta. Complaint Process.
[216] Savage W: A Savage Enquiry Virago Press 1986. Cited in Auditor General’s report 2003
[217] Savage W. The Savage inquiry: a personal reply. BMJ 294: 775, 1987
[218] Advisory panel’s report to Tower Hamlets District Health Authority. BMJ 293: 1091-1092, 1986
[219] Learning from Bristol: the report of the public inquiry into children's heart surgery at the Bristol Royal Infirmary 1984 –1995 Command Paper: CM 5207
[220] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[221] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[222] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[223] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[224] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[225] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[226] NCAA Toolkit http://www.ncaa.nhs.uk/toolkit/
[227] Department of Health. Doctors And Dentists: Disciplinary Framework 2004
[228] The Management of Suspensions of Clinical Staff in NHS Hospital and Ambulance Trusts in England, November 2003
[229] Alimo-Metcalfe B, Alban–Metcalfe R. Heaven can wait. Health Service J 12 October 2000 26-8.
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