ETHICAL PRACTICE THROUGH HEALTH PROFESSIONS GOVERNANCE

The Role of Accountability Measures

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Presenter: Ireh Iyioha, LL.M., Ph.D.

Assistant Adjunct Professor John Dossetor Health Ethics Centre Faculty of Medicine and Dentistry

University of Alberta

Roadmap Background: Adverse Events and Reform

Defining accountability

Accountability in health professions regulation

Why We Regulate

Elements of Accountability

Challenges with holding self-governing bodies accountable

Models/Levels of Accountability in Alberta

Regulatory Models in Canada and UK

Ethics, Accountability, and Governance

Accountability Mechanisms in Alberta and UK

Achieving Ethical Practice: Effectiveness of Current Approaches

A perfect Model?

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Adverse Events and Reform • Australia and New Zealand:

• 485 cases serious enough for disciplinary tribunal hearing • Only 43% of physicians removed from Practice

temporarily or permanently (Elkin et al.)

• UK: The Shipman Inquiry: • Harold Shipman: General Practitioner / Serial Killer. • Convicted of 15 murders; possibly committed 250. • Approach taken by professional body after first complaint:

“compassion and collegiality” (Judge M.H. Clarke, 2005).

• Key area of enquiry: How organizations in

charge of monitoring service provision performed their functions.

• Inquiry found "major flaws” in monitoring of doctors: Fundamental changes in the way doctors are monitored & disciplined recommended (BBC).

• Chair, Janet Smith: GMC focused too

much on the interests of doctors & not sufficiently on patient protection.

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Adverse Events… • Bristol Royal Infirmary Inquiry (1998):

• Investigated deaths of 29 babies undergoing heart surgery at Bristol Royal infirmary in late 80s-early 90s.

• Addressed accountability & absence of external monitoring of NHS performance.

• Led to creation of a new national council for regulating healthcare professionals (Guardian).

• Ireland: Michael Neary, Our Lady of Lourdes Hospital: • Obstetrician / Gynecologist performed 129 of 188

peripartum hysterectomies carried out in hospital over 25-year period.

• Average obstetrician performs 5 or 6 in their entire

career of about 35 years. • Struck off the register in 2003

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Defining Accountability

• Accountability: • Blameworthiness and liability (C.A. Dystra)

• Wrongdoing and punishment • Keyword in Health Policy – Like ‘autonomy’

in medical ethics (Emanuel & Emanuel)

“Processes and procedures by which one party justifies and takes responsibility for its activities” (Emanuel & Emanuel).

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Accountability in Health Professions Regulation

• Accountability: Fundamental to governance • Accounting for policies, regulation, and governance decisions • Implementation of established rules, ethical and legal

• Accountability in health professions regulation: • Focus is often on ethical and legal guidelines for individual practitioners • Accountability of regulatory bodies not often addressed • Regulatory bodies: Key to ensuring maintenance of ethical and legal standards

• Accountability of colleges: • Practitioner accountability through oversight of regulatory bodies

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Accountability: Why We Regulate

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Protects patients in an imperfect market

Protects patients in cases of market failure based on conflicts between professional and public interests

Regulates informational asymmetry

Facilitates patient autonomy and empowerment

Controls and minimizes the occurrence of error through standards setting

Constitutes a check on health services providers

Enforcement mechanism of regulation addresses breach of professional standards

Constitutes an important instrument for realizing government policy goals

Facilitates the development of workforce policy

Assists in health workforce planning and addressing shortages in specific services

Provides cross-ministerial information and data for workforce development

Workforce data supports policies towards workforce strengthening

Workforce knowledge and data can lead to reduced wait-times

Elements of Accountability • Three key elements:

1. Parties that are held accountable: • Healthcare practitioners • Regulators • Government

2. Actions for which parties can be held accountable:

• Professional Competence • Legal and Ethical Conduct

3. Mechanisms of Accountability: • Procedures for ensuring compliance with standards and rules.

- (Emanuel and Emanuel).

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Holding Self-governing Bodies Accountable: Challenges

• Self-governance connotes autonomy. • Accountability: Limit on autonomy? • Professional autonomy:

• Profession defines and enforces competence & applicable legal and ethical standards: • 3 uncontested components under “action”;

• Self-governance: Independence from external oversight/Control over accountability process?

• Self-governance: Who regulates the self-regulators?

• Self-governance is delegated: • Government monitors exercise of delegation. • Monitoring ensures exercise of delegation prioritizes patients’ interests.

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Models / Levels of Accountability in Alberta 10

Practitioners – Professional Model

Focus is on patients’ best interests; Patients/practitioners participate in shared decision-making;

Practitioners accountable to patients, clients, employers, and colleagues.

Professional Bodies [Colleges] – Regulation Model

Focus is on patients’ best interests; Goal of patients’ well-being mediated

through focus on practitioner education and conduct.

Practitioners accountable to their professional or regulatory bodies.

Government [Ministry] – Governance Model

Focus is on patients’ best interests; Goal of patients’ well-being mediated

through focus on conduct of associational and regulatory bodies;

Associations and regulatory bodies accountable to government.

Regulatory Models: Canada / UK

Alberta

Ontario

Manitoba

United Kingdom

•Health providers practice regulated through self-governing colleges: •Health Professions Act provides authority: •Delegates powers for self-governance. •Regulates high risk activities, etc.: “Restricted Activity” - requires defined skill or competence to be performed effectively & safely.

• Regulated Health Professions Act, 1991. • “Controlled Acts”

• Regulated Health Professions Act - Proposed. • “Reserved Acts”

• New framework: Outcome of series of tragedies: • Regulation of Health & Social Care providers: • 9 statutory regulatory bodies • Several Accredited Voluntary Registers (AVR) • AVR Registrants are members of occupations not statutorily

regulated in UK. • Regulators supervised by overarching body: “Professional

Standards Authority” (PSA). • PSA does not accredit individuals: • Only accredits organizations managing voluntary registers.

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Ethics, Accountability, and Governance

• Goals of Accountability - • Pursuing patient best interest; • Maintaining legal and ethical standards; • Ensuring patient autonomy; • Creating avenue for justice in patient-service delivery.

• Accountability Measures: Focused on patient autonomy - Provision of information; Guaranteeing public participation; Ensuring public interest takes precedence over professional interests; Ensuring patients are heard through various mechanisms (complaints

and committees, etc.).

• Professional autonomy:

• May conflict with goals and ethical principles underlying accountability measures.

"Consultants in Ireland have their own little independent empire and until they are held accountable and have to provide reports, and until there is an audit of all hospitals in the country, what happened in Drogheda could happen again.” (Colm McGeehin, solicitor for many of Michael Neary’s victims).

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Ethics, Accountability, and Governance…

“The ideal of a profession calls for the sovereignty of its members’ independent authoritative judgment. A professional who yields too much to the demands of clients violates an essential article of the professional code: Quacks, as Everett Hughes once defined them, are practitioners who continue to please their customers but not their colleagues. This shift from clients to colleagues in the orientation of work {is what} professionalism demands.” - (P. Starr; see also Emanuel & Emanuel)

The GMC is an organization created to look after the interests of doctors, not patients (BBC): - (Janet Smith on UK GMC (Source BBC Online).

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Alberta

Accountability Mechanisms: Regulating Self-Regulators

The Health Professions Advisory Board

Health Disciplines Board

Annual Reports

Public Representation

Consultations – Code of Ethics/Standards of Practice

Separation of Functions Between Associations and Colleges

Ombudsman

Ministerial Powers of Oversight

Appeals to Court

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Alberta… Health Professions Advisory Board

• Advises Minister on HPA administration • Considers applications for regulation • Advises on applications for scope of practice

expansion • Any other matters requested by Minister.

Health Disciplines Board • Still temporarily operative under the HDA.

• Advises Minister on:

• HDA administration • Registration and registration decisions • Regulations governing the health disciplines

which are still under the Act.

• Hears appeals on disciplinary/registration decisions.

Annual Reports (AR)

• Colleges required to submit AR to Minister on activities during the year, including:

• Number of complaints against members and disposition;

• Number of appeals to the disciplinary process • Assessment of incapacitated members. • Information on inspections conducted in

members’ practice location. • Audited financial information

• Minister presents AR to Legislative Assembly. • Minister may request additional reports to

ensure compliance with HPA.

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Alberta… Public Representation

• HPA increased level of public participation

• Public representation on college councils, complaint review committees, hearing tribunals and appeal bodies: 25% of membership.

Separation of Functions • Colleges must separate regulatory function from

the associational: • Cannot set or negotiate members’ professional fees • Cannot advocate for financial interests of members

without Minister’s special permission: • Before permission, Minister must be satisfied that

college is structured to allow it separate these roles.

• Cannot act as certified bargaining agent for the professions:

• Prevents conflict of interest.

Consultations • Colleges required to consult with GOA when

developing practice standards & ethical codes • But Government approval not required.

Ombudsman • Provides oversight of provincial government to ensure

fairness: • Through independent investigations & recommendations

(Annual Report 2012-2013).

• Any person may make a complaint to the Ombudsman with respect to anything in the HPA.

• Members of the public who have made a complaint

against a regulated member and feel the outcome is unfair may take their concerns to the Ombudsman.

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Alberta… • Members concerned about their college may make a complaint. • College’s appeal processes must be exhausted. • After Ombudsman's recommendation:

• College or any other person who has investigated a member may rehear matter against a member and reconsider a decision / recommendation.

Complaints Review Committee • Complainants may ask the complaints review committee to review dismissal of a complaint by the

complaints director: • Complaints Review Committee has public member

Appeals to the College Council • An investigated practitioner (or the college’s complaints director) may appeal to council after the hearing

tribunal has handed down its decision.

Appeals to Courts • An investigated practitioner, if dissatisfied with the decision of the college council, can appeal to the

Court of Appeal.

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Ministerial Powers of Oversight • Minister may recommend to Lieutenant Governor in Council, after consulting with college,

to direct council to undertake one or more measures: • Must be in the public interest to give directions to a college, or • Direction would provide for matters of health, safety or quality assurance

• Council may be directed to:

• Adopt standards of practice • Adopt certain amendments to its standards of practice • Make bylaws or regulations • Undertake any power or duty of a council as prescribed by the HPA or a bylaw. • Directives must be accomplished within 45 days.

• Lieutenant Governor may, on Minister’s recommendation and on Minister’s consultation

with college: • Vary by regulation any provision in the HPA as it relates to a college, its council, officers or committees.

• Minister may appoint an administrator for the college if:

• Requested by the college • In the Minister’s opinion, a college requires support • In the public interest

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United Kingdom

The buck passes but does not actually stop here!

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Levels of Accountability Multiple levels of accountability:

Level 1: Practitioner to the public/regulatory bodies Level 2: Statutory regulators to the Professional Standards Authority (PSA) Level 3: PSA to UK Parliament

UK PARLIAMENT

STATUTORY REGULATORS

PRACTITIONERS

VOLUNTARY REGISTERS

PSA PUBLIC

United Kingdom… Accountability Under Statutory Regulation

• PSA’s Review of Fitness to Practice Committee Decisions

• PSA’s directions to regulators to make rules • PSA’s Performance Review of Regulatory Bodies – Focuses on:

• Identifying areas for improvement, recommending changes where necessary, espousing implementation of good practice.

• Recommends changes to the way in which a regulatory body performs its functions. • Health and Social Care Act, 2008 mandates PSA to include in its performance review report:

• Information on “how far, in the opinion of the Council, each regulatory body has complied with any duty imposed on it to promote the health, safety and well-being of such persons”.

• About ten stages in the review process.

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United Kingdom… • Investigations:

• On regulators’ handling of role • Arises at any stage of performance review • Risk Assessments before investigations • Results included in performance review report

• Performance review Report:

• Outlines key issues / concerns in regulation • Addresses regulators’ performance • PSA’s Recommendations • PSA Reports to UK Parliament / Parliament &

Assemblies in Scotland, Wales & Northern Ireland • Stakeholder Access to reports: public,

professionals, patient groups & Dept. of Health

Oversight of Voluntary Register Organizations

• Organizations must meet PSA’s Accreditation Standards.

• Eleven standards for Accreditation PSA’s Duty to Inform and Consult the Public • Publication of information about PSA’s

functions: • Mandated under Health and Social Care Act, 2008

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Achieving Ethical Practice: Effectiveness of Current Approaches • Public Members:

• “Still keeping it in the family”? • Not overseers – can be swayed • Change of opinions overtime in favour of the profession

• Advisory Boards:

• An accountability function? • Other functions? Issues identification; informational or educational resource

for the minister.

• Annual Reports: • Disclosure responsibility can influence effective functioning • Usefulness may be limited by what is disclosed

• Brewing scandals may not be obvious on the pages of reports

• Court Appeals: • Limited systemic impact

• Ombudsman:

• A more effective approach? • Focus is on fairness in procedures

• Consultations:

• Code of Ethics and Standards of Practice: Government approval not required

• Ministerial Powers of Oversight: • Greater systemic impact? • Ever used? The Ontario Example

On Public Reps / Lay members: "They have made great play of putting new lay members on the committee, but when you look at the lay members, most of them are from a health service background: "It is still keeping it in the family” (Anne Alexander, counsel for most of Shipman’s victims – BBC).

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Perfect Model?

• Any lessons to be learnt from strategies in other jurisdictions? • Ministerial oversight: More stringent in other Canadian jurisdictions. • UK’s PSA: Utilitarian purpose?

• PSA’s duty to inform and consult the public as mandated by the Health and Social Care Act, 2008.

• A more appropriate or fitting accountability model for Alberta?

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THANK YOU!

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