How should Hong Kong’s Medical Council be formed? A 2007 British government white paper on reforming the regulation of health professionals, including doctors, nurses, dentists, pharmacists and others may provide insights into this question and help clarify the issues involved.
At the outset of the paper entitled Trust, Assurance and Safety – The Regulation of Health Professionals in the 21st Century, the chief medical officer for England states that the “primary purpose of professional regulation is to ensure patient safety”.
To the end of achieving this primary purpose, the paper lays out a number of core functions for the councils that regulate health professionals in Britain: set and promote standards for health professionals, ensure that health professionals continue to meet the standards set, administer procedures that deal with health professionals whose fitness to practise has been called into question, and ensure high standards of education for health professionals.
To ensure that health professional councils fairly and effectively discharge the said core functions, the white paper enjoins that the councils must not only be independent in their actions but must also be seen to be independent in their actions.
In this connection, the white paper lists several manifestations of independence:
1. “Patients, the public and health professionals need to be able to take it for granted that the councils act dispassionately and without undue regard to any one particular interest, pressure or influence”.
2. The councils “must be separate from the government, constitutionally insulated from day-to-day political pressures”.
3. The councils “must be independent of those who employ health professionals … to ensure that employer interests are not perceived to weaken safeguards for the public or undermine the fair conduct of regulation”.
4. The councils “must be independent of health professionals themselves, so that they are not thought to be beholden to a perceived natural esprit de corps with professional colleagues”.
5. The councils must sit outside “those differences and day-to-day disagreements” arising from viewpoints and perspectives of different stakeholders and “be guided solely by the role that Parliament has agreed for them on behalf of society”.
The white paper suggests that the councils’ independence hinges on how they are formed.
In regard to the composition of the councils, the paper observes that all had a professional majority in their membership at the time, ranging from 52 percent to 100 percent.
The Paper argues that the existence of such professional majorities on councils undermines both the latter’s independence and perceived independence as such an arrangement allows “doubt to be expressed about the weight of opinion [that health professionals] carry in council discussions and decisions, and the perceived reluctance of some [of them] to the ending of professional majorities”.
In view of this and to “establish and sustain confidence in the independence of the regulators”, the white paper opines that “all councils should be constituted to ensure that professionals do not form a majority”. At the minimum, the Paper says, the proportions of professional members and lay members on the councils must be equal.
To fully realize the spirit of lay participation, the paper further adds that lay members must not be “perceived to be deliberately drawn from groups that might be naturally sympathetic to professional interests, such as retired members of the profession”, or else members thus drawn will risk compromising the original intent of increasing the numbers of lay members on the councils. Lay members should reflect the society at large, which the councils are supposed to serve.
Regarding the mechanism for returning council members, the paper is rather critical of elections lest they undermine the independence of the councils.
Elections are a mechanism which incentivizes those elected to be responsive to the interests and concerns of their electorate.
Thus, if professional members of councils are elected by their peers, it is very likely that they will be responsive above all to the particular interests and concerns of the latter. It will then be very difficult for councils to be perceived as independent.
By the same token, we may add that if lay members of the councils are elected by certain preordained sectors of society, they are also very likely to be responsive above all to the particular concerns of those sectors. In such a scenario, unless the concerns of the chosen sectors overlap with those of society at large, members of the public who are excluded from electing lay members to the councils may see their concerns at risk of being overlooked. The independence of the councils may thus be similarly in jeopardy.
However, “[i]t is not practicable to hold elections to the governing councils of the regulators based on the broad and inclusive electorate that would be needed to ensure confidence in the independence of the regulators”.
The British solution to ensuring the independence of all councils for regulating health professionals is to have all members of the councils appointed independently through an independent process against clearly specified criteria and competencies.
The white paper nonetheless has not spelled out the details of the suggested appointment process. Details are left for later determination.
As of now, the power of appointment to healthcare professional councils in Britain rests with the Privy Council.
Prior to Privy Council appointment, however, the authority of setting the processes and principles for recruiting suitable candidates for appointment is in the hands of the Professional Standards Authority for Health and Social Care, an independent body overseeing all healthcare professional councils in Britain.
Meanwhile, individual health professional councils are responsible for several matters: developing their own recruitment processes that suit local needs, demonstrating to the Professional Standards Authority that their processes meet the required principles, recruiting suitable candidates as they see fit, and recommending such candidates for Privy Council appointment.
To gain the confidence of the Privy Council regarding their recommendation of candidates for appointment, the recruitment processes of health professional councils are expected to be a publicly advertised, merit-based open competitive selection process and are required to meet four principles:
1. Merit – all selection decisions must be based on evidence of candidates’ merit.
2. Fairness – processes must be objective, impartial and consistently applied.
3. Transparency and openness – advertisements must be designed in such ways as to attract a strong and diverse field of suitable candidates.
4. Inspiring confidence – processes must promote public confidence in regulation.
While the merits and demerits of the British approach to forming councils for regulating health professionals remain to be debated, the approach highlights a number of issues that should be considered when looking for new ways to form health professional regulatory councils:
1. Is independence a necessary condition for councils in discharging their primary function of ensuring patient safety?
2. Is parity between professional members and lay members on councils a minimum requirement for establishing and sustaining confidence in the councils’ independence?
3. Does recruiting council members by election undermine the councils’ independence?
4. Can recruiting council members via open, merit-based competitive selection ensure the councils’ independence?
5. Is recruitment by open, merit-based competitive selection feasible in a non-democratic system?
6. Are there any other alternative methods for forming healthcare professional councils so that their independence can be assured?
In the search of methods for reforming the Hong Kong Medical Council, advocates of different proposals should inform the public of how their proposals address the issues listed above or alternatively, why their proposals need not address them.
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