In recent years, there has been a major shift in the philosophy and process of the regulation of medical practitioners. Historically, a medical practitioner's basic qualification was recognised and their registration renewed on payment of an annual fee. Unless a complaint was made about their practice, the Board's only interaction with doctors was a simple, annual financial transaction.
By the late 1980s, impaired practitioners were recognised as a group requiring a non-disciplinary approach aimed at protecting the public while maintaining the practitioner in monitored practice, if safe to do so. Impairment provisions were introduced in the 1992 Medical Practice Act, and the Impaired Registrants Program has continued to evolve since that time, providing an alternative pathway to the disciplinary, conduct stream.
However, there still remained a significant group of practitioners, often the subject of patient or employer complaints, who were neither impaired, nor guilty of professional misconduct, but for whom the Board held serious concerns. The non-disciplinary Performance Assessment Program, based on early intervention and remediation was introduced with the 2000 amendments to the Medical Practice Act and provides an effective, third pathway.
Most recently, the Board has clarified its position in relation to the matters that warrant investigation by the Health Care Complaints Commission with a view to disciplinary action. Only those matters that indicate that the practitioner's actions may have been reckless, unethical, wilful or criminal should be investigated. All other matters are managed using timely, non-disciplinary responses, including referral to the Performance Assessment Program.
The 2000 amendments to the Medical Practice Act also introduced the requirement for all practitioners to complete an annual return when renewing their medical registration. The annual return deals with issues of continuing professional development, impairment, professional indemnity insurance and criminal charges and convictions.
Historically, the Board has described its objectives as protecting the public and maintaining standards of medical practice. All of the changes introduced since 1992 have enhanced the Board's ability to fulfil its objectives, although in reality, a number of other organisations also play a significant part. The Board's unique contribution is its statutory ability to assess and manage a practitioner's fitness to practise in the variety of ways described above.
FITNESS TO PRACTISE
'Fitness to practise' is a term gaining currency with authorities such as the UK Gnereal Medical Council, and provides a useful way to consider the interrelationship between the various activities of the NSW Medical Board. It is a term that is easily understood in the general community, and adds another dimension to 'protection of the public' as a description of the Board's responsibilities. The stated object of the Medical Practice Act, 1992, as amended is;
...to protect the health and safety of the public by providing mechanisms designed to ensure that medical practitioners are fit to practise medicine,...
A practitioner's fitness to practise should be considered in all of the following domains, as each has the potential to impact on the quality of the service delivered to patients.
1. Qualifications and experience
Medical practitioners must possess accepted qualifications and experience commensurate with the nature of their work.
2. Health
Medical practitioners' personal health may impact on their capacity to practise medicine safely and effectively.
3. Professionalism
It is important to recognise that fitness to practise can never be ensured or guaranteed by a regulatory authority, and it is impossible to design a system that will provide an absolute guarantee of every practitioner's performance on every day with every patient. Regulatory authorities, including the NSW Medical Board will continue to be reliant on notifications of poor performance, impairment or aberrant behaviour, no matter how robust their processes and programs are.
FITNESS TO PRACTISE: NSW MODEL
The Board currently addresses each of the domains of fitness to practise as follows.
1. Qualifications and experience (registration)
A practitioner's primary qualification is the most basic indicator of their fitness to practise. The Board has well established registration policies applying to both Australian and overseas trained practitioners. This aspect of the Board's approach to fitness to practise need not be elaborated.
2. Health (impairment)
The Board's Impaired Registrants Program is well established, and relies on the voluntary notification of impaired practitioners and in limited circumstances, mandatory notification.
In addition, as part of the annual return, the Board requires practitioners to make a declaration about their health in the preceding year. Although this mechanism relies on the practitioner's insight and honesty, it has been effective in making the Board aware of significantly impaired practitioners, otherwise unknown to it.
3. Professionalism (performance and conduct)
While most regulatory authorities have concentrated their efforts in other areas, the NSW Board also has taken a leading role in addressing the various aspects of professionalism.
Professional expertise encompasses;
While competence does not guarantee acceptable professional performance, it is unlikely that a practitioner who lacks knowledge and skill will perform well.
The Board addresses this aspect of professionalism by requiring doctors to make an annual declaration about their participation in continuing professional development. When this requirement was introduced, the Board widely publicised its expectation that every registered medical practitioner would actively participate in continuing professional development relevant to their practice of medicine.
The validity of using participation in CPD as an indicator of professional competence has often been brought into question. However there is a compelling body of evidence that well constructed, targeted CPD is effective in changing practitioner behaviour.
The non-disciplinary Performance Assessment Program is designed to allow a broad-based, peer assessment to occur in the doctor's own practice. Deficiencies are addressed through retraining and reassessment. Lower level concerns are addressed through interventions such as the provision of written advice or counselling in person.
Professional behaviour
As well as providing an indicator of professional competence, participation in CPD can also be viewed as a simple indicator of positive professional behaviour.
On the negative side, when a practitioner's behaviour has been reckless, unethical, wilful or criminal then their fitness to practise is established in either a Professional Standards Committee or in the Medical Tribunal. The Board is alerted to such behaviour through complaints, and in the case of criminal behaviour, through self-notification and notification from the Courts, as required in the Medical Practice Act.
POLICY
It is clear that the Board has in place a comprehensive framework in which a doctor's fitness to practise can be assessed, monitored and managed. Some aspects of the framework require further development, and all should be subject to continual refinement.
The Board has adopted this 'Fitness to Practise' model in its policy and program development and communications.
In practical terms, the concept of fitness to practise;
