Date
16 December 2017
Giving separate disciplinary powers to the Medical Council will enable it to more effectively deal with the problem of incompetent doctors. Photo: Healthy Practice
Giving separate disciplinary powers to the Medical Council will enable it to more effectively deal with the problem of incompetent doctors. Photo: Healthy Practice

Why Medical Council should have separate disciplinary powers

To enhance the capacity of the Medical Council of Hong Kong to protect the public from dysfunctional doctors, reforming the council’s composition and speeding up its complaint-handling processes are no doubt all possible directions for improvement.

But reforms in such directions may not be sufficient on their own. For such reforms to be effective, the council needs, among other things, separate disciplinary powers to act on the incompetence and inadequate knowledge and skills of doctors.

The council is empowered by law to take disciplinary actions against doctors who 1) are guilty of “professional misconduct”, or 2) have been convicted of an offence punishable with imprisonment in Hong Kong or elsewhere, or 3) are physically or mentally unfit to practice medicine.

We propose that a distinction should be made between “professional misconduct” on the one hand and “professional incompetence” or “poor professional performance” on the other, and that the council should have separate disciplinary powers to handle the latter dimension of doctors’ dysfunctionality.

There are references for such a reform direction in British and Irish practices.

In Britain, the General Medical Council is given powers, on top of the “traditional” powers, to take disciplinary action against doctors who “have not kept their medical knowledge and skills up to date and are not competent”.

Similarly, Ireland’s Medical Council can act against medical practitioners who fail “to meet the standards of competence (whether in knowledge and skill or in the use of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner.”

In its Good Medical Practice, Britain’s General Medical Council sets out the competence standards expected of doctors:

– You must be competent in all aspects of your work, including management, research and teaching.

– You must keep your professional knowledge and skills up to date.

– You must regularly take part in activities that maintain and develop your competence and performance.

The Good Medical Practice warns that serious or persistent failure to follow the standards or principles laid down therein will put one’s registration at risk.

The corresponding standards set out in the Irish Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners provides that:

– Providing medical treatment necessarily involves some degree of risk. However, you should make sure as far as possible that the services and treatments you provide are safe and comply with the standards of the profession. 

– Maintaining your competence throughout your professional career is an essential element of professionalism. Patients expect you to be up-to-date and competent in your specialty or field of practice. You must make sure you maintain and improve your knowledge and skills, recognise and work within the limits of your competence, and address areas within the scope of your practice where you lack competence to provide safe care.

– You should keep in mind the need to maintain your competence as you conduct your day-to-day practice, identifying areas where you may need to update your knowledge or skills. You must address these areas of your practice by taking part in the professional competence schemes set up by the Medical Council and engaging in relevant practice-based activities to enable you to continue to provide a high standard of care.

The Irish Guide advises that all doctors are expected to follow and adhere to the principles of professional practice and conduct set out in it.

To elucidate our rationale for distinguishing between “misconduct” and “incompetence”, some history of Britain’s General Medical Council can help

Between the 1970s and the early 1990s, one issue that haunted the General Medical Council was the difficulty in deciding whether the charge of “serious professional misconduct” could apply to allegations of poor treatment and substandard medical care.

At the time, the council did not have separate disciplinary powers over failure to provide a sufficient standard of medical care. The difficulty became even more acute in the 1980s when more and more complaints of such nature were lodged with the council.

During this period, it was said that in disciplinary processes concerning substandard care, opinions sometimes differed markedly as to whether the established facts amounted to, or were capable of amounting to, serious professional misconduct. There was always a risk that two tribunals might reach different conclusions based on the same facts.

One major reason for the difficulty is that “misconduct” and “incompetence” are two distinct concepts. Misconduct is behavioral. It normally refers to behavior involving dishonesty, willfulness, recklessness, irresponsibility and breach of ethics. Examples are termination of pregnancy in contravention of the law, drug abuse, sexual assault, financial fraud, making false statements, advertising, failing/refusing to treat a patient when necessary.

Incompetence on the other hand is deficiency in knowledge or skill. While failing to treat a patient when necessary is irresponsible, failing to provide to the patient the right kind of treatment is incompetent. Whether or not failing to provide the right kind of treatment is irresponsible and hence amounts to misconduct remains subject to debate. Can a responsible and yet incompetent doctor be charged of misconduct?

The debate in a judicial review case in Britain illustrates the tension between the concepts of “misconduct” and “incompetence”. A doctor was found guilty of serious professional misconduct (SPM) and was erased from the register by the General Medical Council based on the facts that the care provided by the doctor “fell deplorably short of the standard which patients are entitled to expect from their general practitioners”.

On appeal, while accepting the facts, counsel for the doctor argued that poor treatment was not enough to amount to SPM. “It was said that SPM meant conduct that was ‘morally blameworthy’. This could not be determined simply by deciding whether the treatment measured up to an objective standard. The doctor might have been doing his best. It was argued that it was necessary to look at why the doctor gave the treatment he did. Counsel for [the doctor] submitted that if the treatment fell short of a reasonable standard because he had been, for example, too lazy or drunk to examine the patient properly, then he would be guilty of misconduct. But not if he had made an honest mistake.” In other words, an incompetent and yet honest doctor should not be charged of misconduct.

A former senior staff member of the General Medical Council admitted that complaints involving substandard medical care were more of a “gray area” than complaints about other forms of misconduct. Another former senior staff member added that the misconduct disciplinary procedures were not originally designed for dealing with complaints about substandard care and intimated that over a period of decades, the council had been “pushing at the margins” of the concept of serious professional misconduct to try to accommodate substandard medical care, that it was against this background that the disciplinary powers over substandard medical care were introduced. The related law was passed in parliament in 1995.

Back in Hong Kong, we observe that not only has the number of complaints lodged with the Medical Council alleging doctors’ substandard medical care increased substantially over a 15-year period, the scope of the allegations has also expanded considerably in both case variety and complexity.

Between 2001 and 2015, the number of substandard medical care complaints received by the council rose from 57 in 2001 to 237 in 2015, accounting for 24 percent and 50 percent, respectively, of the years’ total complaints. This represents a fourfold increase in number and a twofold increase in proportion in 15 years.

As regards the scope of allegations of substandard medical care, in 2001, there were only two classes of allegations:

1. failure/unsatisfactory result of surgery

2. failure to properly/timely diagnose illness or to give proper advice

By 2015, the classes of allegations expanded to five:

1. conducting unnecessary or inappropriate treatment/surgery

2. failure/unsatisfactory result of treatment/surgery

3. failure to properly/timely diagnose illness/disagreement with doctor’s medical opinion

4. inappropriate prescription of drugs

5. failure to give proper medical advice/explanation

To deal with such diverse substandard care complaints, it would appear that the Medical Council has not only been pushing at the margins of its misconduct disciplinary framework but might have actually pushed beyond the margins of the framework.

The council classifies the five classes of substandard care allegations listed above as “disregard of professional responsibility to patients”, which is one category of professional misconduct. However, if one consults the relevant section of the Council’s Code of Professional Conduct for what “professional responsibility to patients” amounts to, one finds no specific or clear reference to medical care standards expected of doctors.

According to the code, “professional responsibility to patients” covers the following four areas:

1. Medical records and confidentiality

2. Consent to medical treatment

3. Termination of doctor-patient relationship

4. Fitness to practise (physically and mentally)

None of these are directly related to medical care standards expected of doctors.

Only one relevant statement on medical care standards expected of doctors can be found in the code’s 10-page text on “professional responsibility to patients”. This statement appears under the heading “Termination of doctor-patient relationship” and runs as follows: “A doctor has the primary responsibility to provide proper medical care to his patients”. The statement appears in the context of an explanation of the situations where it is in the best interests of the patient for his/her medical care to be provided by another doctor.

As the council does take on complaints about substandard medical care and classifies them as belonging to “disregard of professional responsibility”, we are surprised that “responsibility to provide proper medical care” does not form a distinct area on its own under the “professional responsibility to patients” category instead of being a one-sentence statement hidden under the “Termination of doctor-patient relationship” heading as it currently is.

Furthermore, if a doctor has a primary responsibility to provide proper medical care to patients as the code commands, we are doubly puzzled why “responsibility to provide proper medical care” has not been given an overarching position in the “professional responsibility to patients” category. Our puzzle only deepens given the fact that the code was updated as recently as 2016 but without more prominent stipulations in this regard.

Can the current framework of the code handle the complaints about substandard medical care effectively and fairly?

It is against this background as well as the inherent inadequacy of the concept of “misconduct” for tackling “incompetence” that we point to the reform direction of giving separate disciplinary powers to the Medical Council to enable it to more effectively deal with the problem of incompetent doctors.

The objective of our proposal is to remove any ambiguity concerning the council’s disciplinary powers over professional incompetence so that its capacity to protect the public from dysfunctional doctors can be strengthened.

– Contact us at [email protected]

RT/RA

Member of Hong Kong Democratic Foundation

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