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Chapter 18 - Professional Capacity

20 Jun 2017 - 15:48 | Version 4 |

Contributed by Chanaka Wijeratne and Anne Harvey and current to 28 February 2017

18.1 Introduction

The term professional capacity more properly refers to an individual's fitness or competence to practise their chosen occupation. This chapter will focus on the concept as it has been applied in medicine as no other profession has stimulated the level of legislative or academic interest in its members' competence to practise professionally. Nevertheless many of the areas examined in this chapter are of relevance to other health professions, in particular since the introduction of Australia's Health Practitioner Regulation National Law.

18.2 Historical overview

18.2.1 The origins of medical licensing in the United Kingdom

The licensing of medical practitioners has its roots in the United Kingdom (UK), but is more recent than might be thought. Medicine was not a well-organised or cohesive vocation in the Middle Ages, unlike the religious or legal professions.

When medicine did finally join divinity and law as a profession in the thirteenth century, the university had the right to grant medical licences. (1) However, the length of a medical degree, over ten years, was onerous and limited the number of practitioners. As it was considered a philosophical subject that could be learned simply by reading, men without a degree could also practise medicine legally, with obvious potential for malpractice.

In 1421, physicians presented a petition to the Houses of Parliament, seeking to regulate medical practice because of concerns that unregulated practise by:

many uncunning and unapproved in the aforesaid Science practises, and especially in Physic, so that in this realm is every man, be he never so lewd, taking upon him practise, be suffered to use it, to the "great harm and slaughter of many men:" (2)

In response, parliament recognized that damage had been inflicted by ignorant practitioners in physic and surgery, and granted the Lords of the King's Council the power to punish the unskilled and unlearned. There is little evidence, however, that the Council was particularly active in this function.

In 1511, a statute was passed that allowed a practitioner to obtain a medical licence from the Church, after examination by four Doctors of Physic. (3) A university licence was not a requirement to apply for this examination. The Church was chosen for its authority within society, nationwide organization, and a judicial system that could serve as a disciplinary body for medical practitioners.

Although the College of Physicians was established in 1518, the Church continued to be the primary body licensing the profession. Such power continued until 1858 when the Parliament of the United Kingdom passed the Medical Act 1858, to regulate the Qualifications of Practitioners in Medicine and Surgery. (4) The Act stated:

It is expedient that Persons requiring Medical Aid should be enabled to distinguish qualified from unqualified Practitioners. (5)

This created the position of Registrar of the General Council of Medical Education, now known as the General Medical Council (GMC), and provided for registration of medical practitioners in the UK.

18.2.2 Early history of medical licensing in Australia

The first regulation of the medical profession in an Australia colony actually preceded the establishment of the General Medical Council in the UK. It occurred in 1836 with the creation of the Medical Council of Van Diemen's Land by An Act to provide for the Attendance of Medical Witnesses at Inquest. (6) (7) (The settlement of Van Diemen's Land began in 1803 but formal government only commenced in 1825; New South Wales (1788), Western Australia (1829) and South Australia (1834) were the only other colonial governments then in existence. Van Diemen's Land became Tasmania in 1856.)

In 1838, still some years before the establishment of the UK's regulatory body, New South Wales (NSW) passed An Act to define the qualifications of Medical Witnesses at Coroner's Inquests and Inquiries held before Justices of the Peace in the Colony of New South Wales, creating a single register for legally qualified medical practitioners. (8) (9) Formal examination of medical practitioners' qualifications and public records of qualified persons were instituted, and a three man Medical Board of NSW was set up.

Under this Act and its subsequent amendments, the NSW Medical Board oversaw the rights of doctors and patients, and acted as the self-regulatory body of the medical profession. (10) Initially registration was voluntary, but the legislation was steadily tightened, until unregistered medical practice was effectively illegal. (11)

The Legally Qualified Medical Practitioners' Act 1855 (NSW) consolidated the status and authority of the NSW Medical Board in 1855. (12) The Medical Practitioners' Act 1898 (NSW) repealed the earlier legislation and set out the specific requirements for persons to be deemed "legally qualified medical practitioners" suitable for registration in 1898. (13)

18.3 Initial legislative and professional understandings of impairment

It can be seen that the principle of protecting the public was well established in the early attempts to regulate the medical profession in the UK and Australia. However for many years, documented qualifications and/or training were the sole criteria by which the competence of practitioners was determined.

But what may be described as extra-curricular factors came to be recognized as relevant to medical practitioner registration from the early part of the twentieth century. Specifically, the NSW Parliament passed further legislation in 1900 that empowered the Medical Board to remove the name of a medical practitioner from the register of practitioners, if the Board [after an inquiry] was satisfied that that practitioner had been convicted of a felony or misdemeanour. (14)

A further broadening of eligibility criteria for registration was approved in 1938. The Medical Practitioners Act 1938 (NSW) empowered the Medical Board to refuse to register a person who was otherwise entitled to be registered but who was "of unsound mind or has been guilty of habitual drunkenness or of addiction to any deleterious drug". (15) This seems to have been the first recognition, certainly in Australia, that professional capacity may be affected adversely by the health of a medical practitioner.

Similarly, the United States Federation of State Medical Boards (FSMB) identified drug addiction and alcoholism in doctors as a disciplinary problem in 1958. (16) This body also recommended the development of a model program of probation and rehabilitation for practitioners so afflicted.

The Medical Practitioners Act 1938 (NSW) also provided that: "No person shall be registered under this Act unless the [Medical Board] is satisfied that such person is of good character". (17)

In a 1988 case, the NSW Medical Tribunal ordered the de-registration of a general practitioner after determining that he was not a person of good character and that he had been guilty of misconduct in a professional respect. (18) The most serious misconduct found by the Tribunal was the applicant's commission of the offence of soliciting a criminal, whom he believed to be a standover man and murderer, to intimidate a former patient. Other transgressions involving over-servicing and other misconduct resulted in concurrent deregistration orders for lesser periods, a period of suspension, a fine and reprimands. The Tribunal ordered that the practitioner not be eligible to apply for a review of its order for ten years.

In 2001 the Tribunal considered this former practitioner's application for re-registration. The Tribunal on the balance of probabilities was comfortably satisfied that the applicant:
  1. had not overcome the defect of character which led to the conduct requiring their removal from the register; and
  2. had not rehabilitated to such an extent that they had become a person of good character for the purpose of practising medicine.

18.4 Further development of Australian legislation

The Medical Practice Act 1992 (NSW), stipulated that a person was entitled to registration as a medical practitioner if they had recognised medical qualifications and had successfully completed a period of internship or supervised training. (19)

More tellingly, the Act stated that registration could be refused despite entitlement or eligibility on the grounds of qualifications and training. The Board could not register a person as a medical practitioner unless satisfied that the person:
  1. was competent to practise medicine (that is, the person has sufficient physical capacity, mental capacity and skill to practise medicine and has sufficient communication skills for the practice of medicine, including an adequate command of the English language); and
  2. was of good character. (20)
Also the Act defined impairment as follows:

A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise medicine. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder. (21)

This may be compared with the American Medical Association's earlier 1972 definition of practitioner impairment:

the inability to practice medicine with reasonable skill & safety ... by reason of physical or mental illness, including deterioration through the aging process, the loss of motor skills, or the excessive use or abuse of drugs, including alcohol. (22)

Further, the Medical Practice Act 1992 (NSW) made provision for conditions of practice that could be imposed in cases of impairment:

The Board may impose conditions on a person's registration if the Board is satisfied that the person suffers from an impairment, and the conditions are reasonably required having regard to the impairment. (23)

The Medical Practice Act 1992 (NSW) also restated the provision in the 1900 Act that empowered the Medical Board to remove the name of a medical practitioner from the register of practitioners if it was satisfied that that practitioner had been convicted of a felony or misdemeanour. The 1992 Act specifically provided that the Medical Board could refuse an applicant registration if they had been convicted in New South Wales of an offence, or had been convicted elsewhere by a court for, or in respect of, an act or omission that would have constituted an offence, had it taken place in New South Wales.

However, before it could do so, the Board had to form the opinion that the conviction rendered the applicant unfit in the public interest to practise medicine. In making its decision, the Board had to have regard to the nature of an offence, such as whether it was of a trivial nature, and the circumstances in which it was committed. (24)

In 2000, the NSW Medical Tribunal found that a practitioner, a psychiatrist, was not of good character. This was on the basis of harassment and intimidation of a witness to the offences of which he was convicted as well as for the convictions themselves. The practitioner was also found unfit in the public interest to practise medicine because of the nature of the criminal offences, namely malicious wounding and intimidation with intent to cause fear. In its reasons for decision, the Tribunal stated:

The Tribunal considers that for a person to be of good character for the purposes of the practice of medicine as a registered medical practitioner, it is imperative that his or her character be such that he or she will not deliberately do any harm to another person, at least without reasonable excuse, and that he or she will not commit major serious offences against the criminal law. After all, the practice of medicine is designed to prevent or alleviate suffering, not to inflict it. (25)

18.4.1 Reportable misconduct

The Medical Practice Amendment Act 2008 (NSW) included a provision for "reportable misconduct" which included areas related to impairment. A registered medical practitioner was deemed to have committed reportable misconduct in the following circumstances, they:
  1. practise medicine while intoxicated by drugs (whether lawfully or unlawfully administered) or alcohol,
  2. practise medicine in a manner that constitutes a flagrant departure from accepted standards of professional practice or competence and risks harm to some other person,
  3. engage in sexual misconduct in connection with the practice of medicine. (26)
The Medical Practice Amendment Act 2008 (NSW) further provided that a registered medical practitioner who believed that another registered medical practitioner had committed reportable misconduct was obliged to report this to the Board, and failure to do so constituted professional misconduct. Such a report was to be treated as a complaint. (27)

The strengthening of this concept has been the result of reviews, undertaken in 2006 and 2008, that examined the powers of the NSW Medical Board to take action against medical practitioners so as to protect the public. Also examined were avenues of appeal in respect of such decisions and procedures for dealing with multiple complaints against a medical practitioner. (28)

The reviews were themselves precipitated by public concern over the manner in which the regulatory system had dealt with two cases in particular. The first was that of a general practitioner who worked in a women's health clinic and had been the subject of multiple complaints pertaining to the management of five women on whom the practitioner performed terminations of pregnancy. In October 2005, the Medical Tribunal found the practitioner guilty of unsatisfactory professional conduct and professional misconduct, as well as being not of good character, ordering that the practitioner be deregistered and not apply for re-registration for ten years. (29)

What caught the attention of the public, however, was subsequent media reporting in August 2006 after this practitioner was convicted by a jury of giving drugs to a woman illegally so as to procure a miscarriage. Newspaper reporting emphasised that the jury had been unaware of previous complaints about the practitioner that included multiple contacts with the Medical Board; six cases brought against her for damages, some relating to failed abortions, in the District Court and all settled out of court; as well as a trial for defrauding Medicare. (30)

The second case, reported in even more salacious detail by the media, (31) was uncovered after a public hospital appointment of a specialist in obstetrics and gynaecology, despite the order of a Medical Board Professional Standards Committee five years earlier that had banned the practitioner from the practise of obstetrics. (32) The practitioner had in the course of 15 years at another hospital been the subject of 35 complaints related to alleged bullying of staff and patients, humiliating junior medical and nursing staff in front of patients, failing to communicate with colleagues about clinical matters, and failing to offer adequate anaesthetic and analgesia to patients during procedures. (33) A Board appointed psychiatrist could find no evidence of a psychiatric disorder but stated the practitioner experienced "troublesome personality traits". (34)

Shortly after the practitioner's appointment, the practitioner's employer contacted the Board to discuss concerns about the practitioner's performance. It was at this time that the employer discovered that the practitioner had been excluded from practising obstetrics. The Medical Tribunal eventually found that the practitioner had engaged in professional misconduct of the most serious kind by deliberately failing to inform employers of the limiting clinical practice order. (35)

18.5 Is a medical degree adequate to assume competence?

As noted earlier, the award of a medical degree - augmented by a standardised examination conducted by the Australian Medical Council for international medical graduates - was the traditional manner in which a practitioner's right to be registered was determined. Inherent in this judgment of someone being eligible for registration was an assumption of competence.

Whilst we have seen that more recent legislation, such as the Medical Practice Act 1992 (NSW), explicitly mandated that a degree was essential but not sufficient for practice, there have been few judgments that have considered this area.

In 2003, a medical student's application for registration was refused by the NSW Medical Board despite the student's entitlement based on the qualifications awarded by the student's university. (36) The refusal was based on a mental impairment, diagnosed as a paranoid personality type, that had caused distress to members of the community and resulted in court imposed protective orders.

This decision was overturned on appeal. On the one hand, the judgment recognised that the appellant was technically equipped and highly motivated to practice medicine, and that the appellant's impairment was in remission. However, the judgment also expressed concern about a vulnerability to relapse, especially if the appellant were placed under pressure.

In allowing the appeal and granting provisional registration subject to stringent conditions, the Tribunal balanced the public interest as follows.(37)

Although the protection of the health and safety of the public is the Tribunal's overriding obligation, it believes that, consistently with acceptance of this principle, it cannot wholly disregard the investment of the community, not to mention the Appellant and his family, in his medical education.

That is, the judgement took into consideration, and would seem to have prioritised, the economic and other costs borne by the public in training a medical student, over public safety.

A similar case had a different outcome, so will be explored in more detail.(38)

The case involved a student who commenced an undergraduate degree in medicine in 2003 in Australia. The student had experienced depression and suicidal ideation since childhood, and attempted suicide for the first time in the student's first year at university. The student received intensive psychiatric management and was variously diagnosed as experiencing bipolar disorder, borderline personality disorder and autism spectrum disorder. Despite treatment, episodes of deliberate self-harm continued. The student was also diagnosed with an immunodeficiency disorder.

Upon completion of the degree, the student was granted limited registration to undertake internship. The internship was prolonged by absences from work due to physical and mental health issues. The student's application for reinstatement to complete the internship was refused, and the refusal of the reinstatement upheld on appeal by Anderson J who wrote that, whilst the original decision was "harsh ... the matters raised by the Board are of extreme significance in the public interest, and after reflection I share those views." (39) What follows are the original significant findings of the relevant Medical Board.

In regards to the seminal issue of whether a medical degree was sufficient to practise medicine, the Board stated that it:

... does not hold the view that the acquisition of a medical qualification should automatically give permission for a career in medicine ... Life as a student is very different to that of a clinician and [the appellant] has struggled to cope with the completion of [the] internship for a variety of reasons and has required a team of support to progress only this far. This reflects negatively on [the appellant's] fitness and propriety. (40)

A second factor under consideration was that continuing in medicine was a risk to the very health of the practitioner, an important variation on the primary duty to protect the public:

The Board is very concerned that [the appellant's] continuation in medicine and [the appellant's] aspirations to progress towards a specialty are unrealistic and potentially personally hazardous and depend to a great extent on a suite of supportive personal therapists. (41)

This coupled with the daily immunological illness which places [the appellant] at significant risk of sino-bronchial infection and long-term lung complications, would require special precautions, restrictions and considerations at work. {The appellant] is at serious risk of contracting infections from both patients and the general public. (42)

The original judgment also emphasised the cultural and regulatory burdens, including mandatory notification (see below), imposed on the modern day practitioner:

... the expectations of government, the public and the profession as well as medical regulators are increasing and that mandatory reporting of health professionals under the new national registration legislation will see significant barriers ahead for [the appellant] and present [the appellant] with challenges which will exceed her capacity to cope, with a high risk of adverse personal outcomes. (43)

Finally, the original refusal of reinstatement made reference to [the appellant's] perceived incompetence:

The spontaneity and unpredictability of individual patient presentations, the need to respond to all patients with skill, empathy and compassion, the need to reason and think laterally and with neither concrete thought processes nor prejudice, the uncertainty and need to work as an individual and in a co-operative team under duress for long periods are likely to exceed the capacity of [the appellant] to cope now and into the future. (44)

The original judgment has determined that the appellant lacked the necessary competence to practise medicine on the grounds of lacking sufficient physical capacity, mental capacity, and skill. It has done so by incorporating evidence of the nature and extent of the appellant's disorders, their potential impact on clinical practice, and the need to maintain long term practice.

18.6 National registration of health practitioners in Australia from 2010

The National Registration and Accreditation Scheme for health professionals was introduced on 1 July 2010. It had been recommended by the Productivity Commission in 2006 so as to reduce administrative demands on, and enhance the mobility of, professionals, and accepted by the Council of Australian Governments in 2008. (45) This provided for national registration and regulation of ten health professions, including medical, nursing and midwifery, dentists and psychologists. Other professions have subsequently joined the national scheme so that 14 professions are now represented in the scheme.

As the Commonwealth lacked the constitutional power to enact stand alone federal legislation, the first step in establishing the national statutory scheme was achieved when the Queensland Parliament enacted the Health Practitioner Regulation National Law Act 2009. (46) This legislation was adopted under the principles of mutual recognition by other states and territories, with amendments appropriate to each jurisdiction while maintaining participation in the national scheme. (47) Western Australia was the last jurisdiction in which the National Law commenced on 18 October 2010.

As medical practitioners are subject to the National Law, as it is in force in each state and territory,care must be taken to ensure that reference is made to the particular national law as enacted in each jurisdiction as there are some significant differences. For instance, in NSW, sections of the original enactment by the Queensland parliament were not brought into the National Law (NSW). Instead, many sections of the repealed Medical Practice Act 1992 (NSW) were reinstated, without any significant amendment, in the Health Practitioner Regulation National Law (NSW).

18.6.1 Definitions of competence, impairment, a suitable person in the National Law

The National Law has continued to define eligibility for general registration according to appropriate qualifications, and the practitioner being a suitable person.

Reasons stipulated by the National Law that a health professional is "not a suitable person" for registration are:
  1. an impairment that would detrimentally affect the person's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or
  2. a criminal history such that the professional is not an appropriate person to practise or it is not in the public interest; or
  3. insufficient communication skills in English; or
  4. previous practice of the profession was not sufficient, or
  5. failure to meet an approved registration standard, or
  6. In the Board's opinion, the individual is for any other reason-
    1. not a fit and proper person for general registration in the profession; or
    2. unable to practise the profession competently and safely. (48)
An impairment is defined as:

a physical or mental condition, disorder or disability, including habitual drunkenness or drug addiction, that detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise medicine. (49)

An additional provision in the National Law (NSW) deems a person to be competent to practise their profession if the person has:
  1. sufficient physical capacity, mental capacity, knowledge and skill; and
  2. sufficient communication skills, including an adequate command of the English language. (50)
It should be noted that, in the National Law, the term, a suitable person, was preferred to terms used in previous legislation, namely "being of good character" or "a fit and proper person."

One relevant judgment also emphasised the importance of the public retaining confidence in the medical profession. In 2013, a neurosurgeon was found not to be a suitable person to hold registration, in relation to the supply of a prohibited drug, breach of bail conditions, and making false and misleading statements to the Medical Board in relation to compliance with conditions of practice. (51) (The practitioner was also convicted on a charge of manslaughter and another charge of the supply of a prohibited drug).

In its decision the NSW Medical Tribunal stressed that its role was not to punish, but to make orders that were protective of both the public and the profession. It quoted, as an appropriate starting point, a 1943 UK judgment:

The high reputation of the medical profession as a whole depends in no small measure on excluding from it those whose professional misconduct makes them unworthy to belong to it, and the confidence which the public are accustomed to put in the family doctor is intimately connected with the assurance that those who practise the art of medicine are, in all relations with their patients, individuals of the highest honour. (52)

In the 2013 case the practitioner stated that:

I have brought the profession into disrepute, and I have breached my professional obligations to my colleagues, and in some circumstances my patients. (53)

18.6.2 Mandatory reporting of notifiable conduct

The background to mandatory reporting of doctors, under certain circumstances, was a number of well publicised instances of patients harmed by medical practitioners in Australia, discussed earlier, as well as in the United Kingdom. (54) This led to public demand for better systems of recognising and reporting errors. The forerunner of this part of the National Law was "reportable misconduct" required by the Medical Practice Act 1992 (NSW) and Medical Practice Amendment Act 2008 (NSW), both discussed earlier.

The National Law states that employers, education providers and health practitioners have a legal obligation to report "notifiable conduct" about any other registered health practitioner (or student), to the relevant board through the Australian Health Practitioner Regulation Agency (AHPRA), which refers the notification to the appropriate body. (55) For example, health practitioners such as nurses and psychologists have a duty to report notifiable conduct in a medical practitioner and vice versa.

"Notifiable conduct" is defined as where a health practitioner has:
  1. practised their profession while intoxicated by alcohol or drugs; or
  2. engaged in sexual misconduct in connection with the practice of their profession; or
  3. placed the public at risk of substantial harm in their practice of their profession because they have an impairment; or
  4. placed the public at risk of harm because they have practised their profession in a way that constitutes a significant departure from accepted professional standards. (56)
The provisions in the National Law do, however, contain a number of exemptions to the obligation to make a mandatory notification. These circumstances include instances in which the practitioner who would be required to make the notification:
  1. is employed or engaged by a professional indemnity insurer, and forms the belief because of a disclosure in the course of a legal proceeding or the provision of legal advice arising from the insurance policy;
  2. forms the belief while providing advice about legal proceedings or the preparation of legal advice;
  3. is exercising functions as a member of a quality assurance committee, council or other similar body approved or authorised under legislation which prohibits the disclosure of the information; or
  4. reasonably believes that someone else has already made a notification. (57)
Whilst a person who makes such a notification in good faith is not liable civilly, criminally, or in defamation proceedings, there are penalties for failing to do so. This obligation to notify applies to all States and Territories, except Western Australia.

A study of 819 mandatory notifications made in each jurisdiction, apart from New South Wales, during the period 1 November 2011 to 31 December 2012 showed that 62% were for a departure from accepted standards, 17% for practising with an impairment, 13% for practising whilst intoxicated and 8% for sexual misconduct associated with clinical practice. (58) There was wide variation in reporting rates by jurisdiction, sex and profession.

Almost 90% involved a doctor or nurse as a notifier or respondent. The highest rate of notifications, however, was made against psychologists, followed by medical practitioners, and then nurses and midwives. Male health professionals were over two times more likely to be the subject of a notification than female practitioners. This was consistent with other research, which has shown that male doctors were more likely to be the subject of patient complaints, disciplinary action and litigation. Possible factors for this male preponderance were greater patient consultations, a tendency to be overrepresented in certain medical specialties such as surgery, and sex differences in communication style and risk taking behaviour.

The low rate of notifications made by nurses against doctors (3%), despite nurses being best placed to observe the practice of doctors, and the five-fold variation in reporting by jurisdiction have led to concerns about underreporting. Reasons for this that have been hypothesised include a lack of awareness of this requirement of the National Law, a potential notifier's fear of retaliation and loyalty to a professional or institutional colleague.

One particularly controversial aspect of mandatory notification is that the onus to make the report is on the health professional who believes that, in the course of providing care to another health professional, that the person receiving care had engaged in notifiable conduct. (59) The arguments were that this was a breach of patient confidentiality and reduced the chances of a medical practitioner, for instance, seeking help. Strong advocacy on behalf of this view led to this particular aspect of mandatory notification being exempt in Western Australia. In practice, it is usual for treating practitioners to encourage their patient to first make a self-notification, which is then followed by a mandatory notification by the treating practitioner.

Review of all mandatory notifications made against health practitioners, however, showed that only 8% were made by treating practitioners. (60) It was far more likely that the complainant was not a regular treating practitioner and the notification followed a period of acute mental illness or intoxication in the health practitioner notified against.

18.7 Mental disorders, impairment and continuing practise

In defining impairment, the National Law requires the presence of a mental or physical condition that, either detrimentally affects or, is likely to detrimentally affect the person's capacity to practise medicine.

The distinction between disorder and impairment is crucial; the presence of a disorder per se does not constitute impairment. Doctors, like the rest of the community, suffer from a range of physical and mental illnesses which, when treated and not affecting practice, do not constitute impairment or grounds for notification.

Conversely, a practitioner may experience an impairment in the absence of a formal diagnosis of a particular mental disorder. As the NSW Court of Appeal pointed out in a 2003 case; once the Tribunal came to the conclusion that whatever it was that the former doctor suffered from was prejudicial to an orderly conduct of their mental and physical duties as a medical practitioner, the Tribunal was entitled to make a finding of impairment even although it did not put a psychological label on that impairment. (61)

18.7.1 Does an impairment necessarily lead to inability to practise?

There are certainly instances where the impairment experienced by a registered health practitioner definitely leads to their inability to practise, albeit usually temporarily. This is particularly the case during an acute exacerbation of a mental disorder, such as when a practitioner with bipolar disorder develops acute mania.

It is important to note, however, that meeting the National Law's definition of an impairment does not necessarily equate with the inability to practise or the loss of registration. Most practitioners with a stable mental disorder who come to the attention of the National Board will continue to practise with appropriate practice and health conditions imposed. It would be expected that at times of illness the practitioner would seek and accept appropriate medical and other health care, limit or cease their practice, and notify the relevant authority.

The difficulties in determining the threshold for safe practice in the presence of a defined disorder are well illustrated by the example of cognitive impairment; a common reason for the referral of older practitioners to regulatory bodies. Cognitive impairment is in fact a broad-dimensional construct that covers conditions ranging from Mild Cognitive Impairment (MCI) (62) to dementia, with resultant variation in its severity, rate of ongoing decline, and potential impact on practice. In some cases of MCI, such as those associated with substance abuse or depressive disorder, the degree of cognitive impairment may reverse to at least some extent with improvement in the underlying condition.

Another factor to consider in interpreting whether an impairment would detrimentally affect the capacity to practise is the type and context of clinical practice. The notion of task-specific capacity is illustrated by the very different impact a tremor will have on the capacity to practise for a surgeon, as compared to a psychiatrist. (63) It may be appropriate for a doctor with MCI who limits their work to medico-legal assessments on behalf of an insurance company, is not faced with acute or complex presentations, and is not required to make diagnostic or management recommendations, to continue to practise.

18.7.2 Anxiety, depressive and substance use disorders, suicide

The common mental disorders experienced in the community - depressive disorders, anxiety disorders and substance use disorders - are those that are predominantly experienced by medical practitioners.

The exact prevalence of these disorders in medical practitioners is unclear because of methodological difficulties in studies such as response bias and the reliability of self-report data. Data from the largest Australian survey of its type, the National Mental Health Survey of Doctors and Medical Students, showed that doctors reported substantially higher rates of psychological distress and suicide attempts, as compared to both the general population and other professionals. (64)

Approximately 21% of doctors reported a lifetime diagnosis of, or treatment for, depression, whilst 6.2% reported a current diagnosis. The current level of depression in doctors was similar to that in the general population, but higher than in other professionals (5.3%). Approximately 9% of doctors reported having ever been diagnosed with, or treated for, an anxiety disorder (population rate 5.9%). Some 3.7% reported a current diagnosis of an anxiety disorder (population rate 2.7%).

A study of Australian coronial data of health professionals reported that female doctors were 2.5 times more likely to die by suicide than women in other occupations, whereas the apposite rate in male doctors was no higher. (65) The highest rate of suicide was in female nurses. In particular, the rate of suicide was 1.6 times higher in health professionals with ready access to prescription drugs than professionals without such access.

The use of the AUDIT screening questionnaire showed that 15% of a cohort of 3000 doctors practising in Australia was at risk of hazardous alcohol use (17% of men and 8% of women). (66) Personality factors and demographic factors, such as being male, middle aged (40-49 years) and being trained in Australia, were associated with alcohol abuse, whereas work related factors were not.

The prevalence in doctors of other well defined mental disorders, such as bipolar affective disorder and schizophrenia, which are far less common in the community, is unknown.

18.7.3 Personality disorders

In contrast to the mental disorders just discussed, the definition of a personality disorder, and the differentiation between personality traits and disorder, may be more controversial. Personality disorders represent aspects of an individual's longstanding function, dating back to adolescence, in a variety of situations and environments. They present with maladaptive patterns of inter-personal interaction and behaviour and, in most cases, distressing intra-psychic thoughts and emotions. They result in intense distress to the individual and/or to others around them.

Most doctors have anxious personality traits. Such traits are common in other professions as well, and indeed are associated with competence and success in a variety of endeavours. Yet, the so-called obsessional or compulsive triad - self-criticism and doubt, guilt, and an exaggerated sense of responsibility or devotion to work - may become a vulnerability to the development of psychological distress under certain circumstances. (67)

Whilst less common, it is the impulsive personality traits, such as borderline and narcissistic traits, that are more likely to prove challenging for regulatory authorities. Such people seek to interact with others only from a position of power and perceived superiority, displaying tremendous confidence and belief they 'know best'. (68) They aim to elicit admiration from patients and colleagues, or else their fear and obedience.

The difficulties of recognising personality disorder are considered in the following two cases concerning male general practitioners who had practised for many years under the health programme in their state before de-registration.

In a 2008 case, the Medical Tribunal of NSW found that, as a result of the practitioner's conduct, they could no longer enjoy the trust of patients, medical colleagues, or the public generally. The Tribunal found that the only way the public could be protected and confidence in the profession maintained was by making an order to prevent the practitioner from practising. A number of experts provided varying diagnoses such as histrionic personality disorder, paranoid personality disorder and delusional disorder. While it was not necessary for a particular diagnosis to be established for the Tribunal to find impairment, it found the practitioner suffered a constellation of symptoms and behaviors sufficient to make a finding that they suffered from an impairment. It went on to conclude that the practitioner experienced a "delusional disorder with its persecutory and paranoid traits." By reason of that impairment, the Tribunal found that the practitioner was not competent to practise medicine, and that the only appropriate order was deregistration. (69)

However as a 2015 case shows, there is often varying evidence of expert witnesses when asked to determine whether a personality disorder is present. In that case the Occupational Division of the Civil and Administrative Tribunal of NSW (NCAT) cancelled the registration of a practitioner because it found that the practitioner had an impairment in the nature of a narcissistic personality disorder to such a degree that the practitioner did not have the capacity to practise medicine. (70)

The first psychiatric expert considered whether the doctor in question, who was a general practitioner, had "an underlying health problem which leads [the practitioner] to hold the grandiose view of [the practitioner's] practice skill, and leads [the practitioner] to practise in unreasonable isolation." The expert concluded that:

on the basis of the relatively meagre clinical information currently available to me, I am once again unable to safely conclude that [the general practitioner] has any recognisable or diagnosable..... psychiatric disorder".

A second expert diagnosed narcissistic personality disorder, which would detrimentally affect the capacity to practise medicine in three ways:

Firstly [the general practitioner] is likely to make premature diagnostic decisions and not consider any differential diagnoses ... Secondly [the practitioner] has and will be likely in the future to ignore or neglect patients that disagree with {the practitioner] ... Thirdly, [the practitioner's] interpersonal manner will be significantly disruptive to the doctor-patient (and doctor-carer) relationship.

A third expert agreed that the general practitioner had narcissistic personality traits but disagreed this represented a disorder because there was a lack of disruption in other parts of the practitioner's personal life. That is, he was not thought to experience a disorder because any impact on his functions did not extend beyond his patients.

NCAT found a number of the complaints proven and held that [the practitioner's conduct] constituted professional misconduct. NCAT's findings arose from the practitioner's conduct involving a number of patients extending to misdiagnosis, inappropriate treatment regime, poor communication skills, propensity to diagnose certain conditions and failure to accept advice from peers. (71)

In addition, NCAT accepted the evidence of the second expert, rejecting the evidence of the third expert, given serious concerns for patient safety expressed by the defendant's supervisors:

[The practitioner's] ability to practise medicine has been severely compromised, weakened and damaged because of the impact of [the practitioner's] narcissistic personality disorder on [the practitioner's] ability to diagnose appropriately, create appropriate treatment regimes, relate appropriately to patients, relate appropriately to [the practitioner's]peers, and otherwise conduct himself in a manner appropriate to standards of behaviour expected within the community of medical practitioners. (72)

NCAT found:

the evidence ... lead inexorably to the only possible conclusion, namely that [the practitioner], by reason of [the practitioner's]impairment and the numerous failings in [the practitioner's] medical knowledge, diagnosis, treatment and patient interrelationships, is incapable of practising safe medicine. The only conclusion open to us is that the respondent should not be permitted to continue to practise medicine in the interests of the protection of the public". (73)

Cases of impairment associated with personality disorder, which in theory may be lifelong, also raise the question of the time-frame within which an application may be made for the reinstatement of the practitioner's registration. In this case, NCAT stated:

the evidence is that any improvement in the condition of the respondent will require intensive dynamic psychiatric treatment. On the evidence, the respondent has never undertaken such treatment because that which has been afforded to [the respondent] to date has been of a passive variety. There must be considerable doubt, therefore, whether the respondent will be able to overcome [the respondent's] impairment, at the very least in the medium term. (74)

In cancelling the practitioner's registration, NCAT concluded that the practitioner was probably permanently unfit to practise safely and ordered that no application for review of its decision could be made for seven years. This arbitrary period of ineligibility for reinstatement of registration does highlight the difficulties in accessing, engaging in, and achieving remission from evidence based psychological treatments for people with a personality disorder.

18.7.4 The late career medical practitioner; cognitive impairment

The ageing of the population and the improved quality of life of older people is reflected in the growth in the number of doctors practising beyond what used to be understood as the standard retirement age of 65. In 2014, 9.9% of the medical workforce was aged 65+, representing an increase of 80% in the number of doctors in this age group over the preceding decade. (75)

Late career practitioners provide an essential service to the community and are a valuable source of wisdom to their more junior colleagues. This must be balanced, however, against the risk of age related physical and cognitive changes that may confound the ability to practise safely.

Whilst medical practitioners may anticipate a slightly longer life expectancy than the rest of the community, (76) they are not immune to physical illness.Moreover, common physical diseases known as "vascular risk factors" - such as obesity, coronary heart disease, hypertension, raised cholesterol and diabetes mellitus - increase the likelihood of cognitive impairment.

There are broad age related changes in cognition which tend to be heterogeneous. (77) Fluid intelligence, the capacity to think adaptively and apply critical or analytical reasoning tends to decline with age. In contrast, there is stabilisation or possibly improvement with age in crystallised intelligence, a measure of accumulated knowledge and wisdom that is dependent on education and experience. It is unclear whether deterioration in the former can be compensated for by the latter.

The gold standard assessment of cognition is neuropsychological assessment, sometimes called psychometric testing, which will identify relevant areas of concern. (78) For instance, working memory, the ability to hold different pieces of information simultaneously in one's head, is important given a practitioner will need to integrate a patient's current presentation, past history, test results, and so on before formulating a diagnosis and management plan. Another is executive function, which is important for organisation and judgement, for instance weighing the pros and cons of potentially opposing diagnoses and treatment options.

Neuropsychological testing may help provide a rationale for why a practitioner may have been the subject of a complaint and guide the assessment of professional competence. There are some limitations of testing however. For instance, testing occurs in a quiet and structured environment, so that results may not extrapolate to busy clinical situations. Given this, neuropsychological testing may be supplemented by in vivo assessments such as an audit of a practitioner's clinical notes, observation of clinical interactions and examination of clinical scenarios.

Whilst medical practitioners have a theoretically lower - up to 50% - risk of dementia because of their greater level of education and occupational complexity, (79) they are not immune to developing both more subtle levels of cognitive impairment and frank dementia. These issues become even more prominent amongst those practising into their eighth and ninth decades.

As cognitive issues are typically unnoticed in doctors, they are rarely identified as such at initial assessment. For instance, one study described 148 doctors who were referred to the California Medical Board for problems such as complaints about misdiagnosis, surgical complications, inappropriate treatment or prescription. (80) Neuropsychological assessment found they performed in the average range for people in the community on most measures, but demonstrated relative deficits on tests of sequential processing, attention, logical analysis, hand-eye coordination, verbal and non-verbal learning. What also stands out about this study is that the mean age of the participants was 54 years (age range 32-83).

Similarly, of 109 doctors and dentists referred to the UK's National Clinical Assessment Service for clinical difficulties, governance or safety issues, 20% scored below the standard cut-off score on a cognitive screening instrument, the Addenbrooke's Cognitive Examination Revised (ACE-R). (81) Some 13% were eventually diagnosed with cognitive impairment after neuropsychological assessment, the youngest being 46 years. Many were working in isolation. Performance assessment results showed persistent failings in the practitioners' record keeping and clinical assessment.

A study of the case records of 41 consecutive notifications of doctors aged 60 years and older to the Impaired Registrants Program of the then Medical Board of NSW reported dementia in 12%; cognitive impairment in 54%, substance abuse in 29% and depression in 22% (two comorbid psychiatric conditions were present in 17%). (82)

18.8 Practioner health and self-reflection

Although not a part of the legislative framework, the Medical Board of Australia has provided the following advice to practitioners who are aware of, or suspect, that they experience a health condition or impairment that could adversely affect their judgment, performance or a patient's health. In such instances, practitioners should be aware of the importance of:
  1. not relying on a self-assessment of the risk posed to patients
  2. consulting a treating doctor about whether, and in what ways, their practice may need to be modified, and following that doctor's advice. (83)
Similarly, as none of the health professions in Australia impose a mandatory retirement age - as is the case for judges and pilots - it is incumbent on the practitioner to plan actively for and transition to retirement. (84) (85) (86) (87) It may be argued that determining the timing of this process should be incorporated into the concept of professional competence as well.

This was highlighted by the decision in a case involving a 77 year old medical practitioner who was diagnosed with a cognitive disorder after a complaint to a regulatory authority. NCAT noted:

We recognise that it is sometimes difficult for a health practitioner, particularly a doctor, who may be self-employed or an independent contractor, to objectively assess that the time has arrived when the health and safety of the practitioner's patients dictates that he or she should retire from practice. But practitioners have a duty to put the health and safety of the public before their own needs and desires. (88)

In addition, it would seem important for professions to highlight this as a legitimate professional consideration. It is notable that in Australia, the College of Intensive Care Medicine and the College of Anaesthetists, respectively, have released position statements that do highlight the challenges of ageing to their Fellows. (89) (90)

18.9 Non-legislative definitions of professional competence

Finally, we consider the different approach taken to professional competence in non-legislative settings. In particular, the professional definition of competence clearly differs from the legislative, which is not surprising given the two serve quite separate purposes. The distinction highlights the fact that legislation operates as a threshold for regulation and intervention, whilst the professional definitions operationalise and "flesh out" the concept.

In addition to the core knowledge and technical skills mandated by legislation, professional conceptualisations of competence have emphasised the cognitive and emotional aspects of practice. This includes, for instance, the integration of knowledge to clinical practice and interpersonal skills.

One professional definition is that competence consists of habitual and judicious use of communication, knowledge, technical skills, clinical reasoning, emotions, values and reflection in daily practice, for the benefit of the individual and community being served. (91)

Both conceptualisations are broadly united, it can be seen, by the goal of benefitting the public via the acquisition of adequate knowledge and skills. The professional model additionally serves to discriminate between candidates applying for training programmes in the various medical specialties.

18.9.1 The limitations of legislative definitions of competence

There are a number of areas in which legislative definitions of professional competence are limited.

Firstly, competence tends to be viewed as a static phenomenon. That is, once acquired, competence is assumed to persist over the course of a career, unless doubt is formally cast by mechanisms such as a patient complaint or a notification to a regulatory authority. In contrast, definitions written by medical educators and professional bodies have explicitly emphasised professional competence as a dynamic construct that is developmental, impermanent and context dependent.

The completion of continuing medical education (CME) and continuing professional development (CPD) programs are a prerequisite for renewing registration, and so are ways to ensure the maintenance of professional skills. Such programs may become one component of a process of revalidation in the future, (92) an altogether more controversial means of ensuring ongoing competence, especially if revalidation were to be used as a legislative proxy.

Secondly, legislation considers only the most superficial element of communication, the spoken word. Professional definitions of competence consider communication to go well beyond an adequate knowledge of English, or whatever is the language of the majority population being served.

In fact the production of a culturally versed physician is a goal of the vast majority of medical schools and specialty training programs in the western world. (93) This has been driven by the concept of globalisation, from which medicine is not exempt, and recent changes in western nations, which have become multi-ethnic and socially diverse societies. Cultural competency is demonstrated by an awareness that each clinical presentation is potentially associated with a myriad of culturally shaped ways in which health, illness, healing and death are perceived.

Another way in which communication transcends simple language skills relates to the change in medicine away from a paternalistic and unitary model of care. This means that a modern competency must be a commitment to collaborative decision-making with the patient and their family, and an understanding that the patient is best managed by a multidisciplinary team of health professionals with diverse, but complementary, skills. As such, communication includes the ability to work effectively with colleagues from other health disciplines.

Thirdly, the National Law states that the nature of a person's criminal history may deem that person unsuitable to practise medicine. Whilst criminal history is a convenient 'red flag' for considering suitability, it may be argued that it is a most unrefined one. In contrast, professional definitions consider more rudimentary markers of suitability, incorporating the affective and moral dimensions to competence. These include basic commitments to the health and well-being of individual patients and society through ethical practice, high personal standards of behaviour, and accountability to the profession and society.

It may be argued that the notion of ethical conduct, delineated in the Medical Board of Australia's Code of Conduct, is better placed to determine suitability of character than consideration of criminal conduct. (94) Although the Code specifically states that it is not a substitute for the provisions of legislation and case law, it does set and maintain standards of practice against which a doctor's professional conduct can be evaluated.

18.9.2 The UK notion of fitness to practise

The General Medical Council of the United Kingdom, where we started this overview of professional competence, would appear to have achieved a more favourable coupling of the legislative and professional demands.

Importantly the term "fitness to practise," instead of competence, was used by the United Kingdom's Medical Act (1983). (95) In addition, the General Medical Council has separately elaborated on the Meaning of Fitness to Practise in a guidance to practitioners. (96) This incorporates not only the basic technical and other competencies, but also the importance of the therapeutic relationship with the patient, communication and partnership, self-monitoring of performance, and awareness of the position of trust held by the profession within the community.

To practise safely, doctors must be competent in what they do. They must establish and maintain effective relationships with patients, respect patients' autonomy, and act responsibly and appropriately if they or a colleague fall ill and their performance suffers.

But these attributes, while essential, are not enough. Doctors have a respected position in society and their work gives them privileged access to patients, some of whom may be very vulnerable. A doctor whose conduct has shown that he or she cannot justify the trust placed in him or her should not continue in unrestricted practice while that remains the case.

The standards of competence, care and conduct expected of doctors has been set out in the General Medical Council's guidance, Principles of Good Medical Practice. The four domains outlined are:
  1. Knowledge, skills and performance: doctors must provide good standards of clinical care, practise within the limits of their competence, and keep up to date with developments in their field, maintain their skills and audit their performance.
  2. Safety and quality: doctors must ensure that patients are not put at unnecessary risk, by contributing and complying with systems to protect patients. This includes raising concerns about risks to patient safety, including those risks posed by the doctor's own health.
  3. Communication, partnership and teamwork: doctors must communicate effectively with patients and those close to them, to establish and maintain partnerships with patients. They must work collaboratively with colleagues to maintain or improve patient care, including being prepared to contribute to the teaching and training of doctors and students.
  4. Maintaining trust: doctors must be honest and trustworthy towards patients and colleagues in all aspects of their practice, including financial and commercial arrangements, and legal or disciplinary proceedings. They must treat patients and colleagues fairly and without discrimination. (97)
It is pertinent to note the onus, stated under the second domain of safety and quality, placed on a doctor for taking responsibility for their own health, lest it poses a potential risk to patient health.

Moreover, the General Medical Council has nominated a number of circumstances under which a question of fitness to practise is likely to arise. In such circumstances, a medical practitioner has:
  1. harmed or put patients at risk of harm;
  2. shown a deliberate or reckless disregard of clinical responsibilities;
  3. experienced health problems that are compromising patient safety;
  4. abused a patient's trust or violated a patient's autonomy or other fundamental rights;
  5. behaved dishonestly, fraudulently or in a way designed to mislead or harm others. (98)
We conclude that the General Medical Council's fitness to practice guidance goes beyond basic legislative definitions of practitioner competence to incorporate some of the broader aspects covered by professional definitions of competence.

Notes

1 : John H. Raach (1944). "English medical licensing in the early seventeenth century". Yale Journal of Biology and Medicine 16 (4): 267-288, at pp. 274-5.

2 : Ibid. p. 268

3 : Ibid. pp. 270-2.

4 : Medical Act 1858 http://www.legislation.gov.uk/ukpga/Vict/21-22/90 (accessed 30 July 2016).

5 : Medical Act 1858 http://www.legislation.gov.uk/ukpga/Vict/21-22/90 (accessed 30 July 2016).

6 : http://www.austlii.edu.au/au/legis/tas/num_act/aatpftaomwai1vn14668/ (accessed 30 July 2016).

7 : The Companion to Tasmanian History, Medical Profession (Centre for Tasmanian Historical Studies), Alison Alexander ed. http://www.utas.edu.au/library/companion_to_tasmanian_history/M/Medical%20profession.htm (accessed 30 July 2016).

8 : Australian Medical Pioneers, Medical Registers, http://www.medicalpioneers.com/sources.htm (accessed 30 July 2016).

9 : http://www.legislation.nsw.gov.au/acts/1838-3a.pdf (accessed 30 July 2016).

10 : Bob Browning, Health Funding and Medical Professionalism, (Australian Academy of Medicine & Surgery http://www.aams.org.au/contents.php?subdir=library/history/funding_prof_med_au/&filename=1788to1900 (accessed 31 July 2016).

11 : Australian Medical Pioneers Index, Medical Registers, published by State Library of Victoria http://www.medicalpioneers.com/sources.htm (accessed 30 July 2016).

12 : Bob Browning, Health Funding and Medical Professionalism, (Australian Academy of Medicine & Surgery), http://www.aams.org.au/contents.php?subdir=library/history/funding_prof_med_au/&filename=1788to1900 (accessed 31 July 2016).

13 : Medical Practitioner's Amendment Act No 26, 1898 (accessed 31 July 2016).

14 : Medical Practitioner's Amendment (No 2) Act No 33, 1900 (NSW) http://legislation.nsw.gov.au/acts/1900-33.pdf (accessed 31 July 2016).

15 : Medical Practitioners Act 1938 (NSW) s. 17(6)(c) http://legislation.nsw.gov.au/acts/1938-37.pdf (accessed 31 July 2016).

16 : Federation of State Medical Boards 2016 http://www.fsphp.org/about (accessed 15th July 2016).

17 : Ibid. section 17 (7).

18 : In the Matter of Geoffrey Walter Edelsten, Decision of Medical Tribunal of New South Wales, No 40018/00, dated 31 July 2001 http://www.mcnsw.org.au/page/hearings-and-decisions/decisions/medical-tribunal-decisions-index/medical-tribunal-decisions-2001/ (accessed 12 February 2017).

19 : Medical Practice Act 1992 (NSW), s 4, http://legislation.nsw.gov.au/acts/1992-94.pdf (accessed 31 July 2016).

20 : Ibid. s 13.

21 : Ibid. Dictionary clause 3.

22 : Council on Mental Health, Report of American Medical Association. The sick physician, JAMA 1973; 223:684-687.

23 : Ibid. s 10(1).

24 : Ibid. s 15.

25 : In the Matter of Dr. Roderick Doyle Motum and the Medical Practice Act 1992, Decision of Medical Tribunal of New South Wales, No 4013 of 1999, dated 2 August 2000 http://www.mcnsw.org.au/page/hearings-and-decisions/decisions/medical-tribunal-decisions-index/medical-tribunal-decisions-2000/

26 : NSW Medical Practice Amendment Act 2008 (NSW) s 71A(1).

27 : Ibid. s 71A(2) and (3).

28 : Bird S & Turnbull H. NSW Medical Practice Amendment Act 2008. Medical Indemnity Industry Association of Australia Newsletter, issue 12, August 2008 (pages 1-3).

29 : In the Matter of Suman Sood and the Medical Practice Act 1992, Decision of Medical Tribunal of New South Wales, No 774, dated 6 October 2005 http://www.mcnsw.org.au/resources/585/SOOD.pdf

30 : Jacobsen G. Revealed: the dark past of a guilty abortion doctor. Sydney Morning Herald 24 August 2006.

31 : Carroll L. 'Butcher of Bega' Graeme Reeves released from jail. Sydney Morning Herald, 28 December 2013.

32 : Garling P. First Report of the Special Commission of Inquiry. Inquiry into the circumstances of the appointment of Graeme Reeves by the former Southern Area Health Service 2008.

33 : Ibid. Section 2.8.

34 : Ibid. Section 2.11.

35 : Ibid. Executive Summary. Findings.

36 : In the Medical Tribunal of NSW 21 August 2003, No 40001 of 2003, Vincent Chang (accessed 12 February 2017).

37 : In the Medical Tribunal of NSW 21 August 2003, No 40001 of 2003, Vincent Chang (accessed 12 February 2017).

38 : Taylor v The Medical Board of South Australia [2010] SASC 308

39 : Ibid. Paragraph 119

40 : Ibid. Paragraph 100

41 : Ibid. Paragraph 102

42 : Ibid. Paragraph 108

43 : Ibid. Paragraph 103

44 : Ibid. Paragraph 104

45 : Productivity Commission. Australia's Health Workforce. Productivity Commission Research Report (2005)

46 : Queensland Health Practitioner Regulation National Law Act 2009 From 1 July 2014: Ombudsman Act 2013

47 : New South Wales Health Practitioner Regulation National Law (NSW) No 86a; Victoria Health Practitioner Regulation National Law (Victoria) Act 2009; Australian Capital Territory Health Practitioner Regulation National Law (ACT) Act 2010; Northern Territory Health Practitioner Regulation (National Uniform Legislation) Act 2010; Tasmania Health Practitioner Regulation National Law (Tasmania) Act 2010; South Australia Health Practitioner Regulation National Law (South Australia) Act 2010; Western Australia Health Practitioner Regulation National Law (WA) Act 2010

48 : Heath Practitioner Regulation National Law (NSW) No 86A. s 55(1)(a), (1)(b), (1)(d) and (1)(f).

49 : Ibid. s 5.

50 : Ibid. s 139

51 : Medical Tribunal of New South Wales. Health Care Complaints Commission v Dr Nair [2013] NSWMT 19 http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=168604 (accessed 24th August 2016)

52 : Viscount Simon LC in General Medical Council v Spackman [1943] AC 627 at 634.

53 : Medical Tribunal of New South Wales. Health Care Complaints Commission v Dr Nair [2013] NMT 19 [16].19http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=168604 (accessed 24th August 2016)

54 : Dame Janet Smith DBE. The Shipman Inquiry. (http://webarchive.nationalarchives.gov.uk/20090808154959/http:/www.the-shipman-inquiry.org.uk/reports.asp)

55 : Heath Practitioner Regulation National Law (NSW) No 86A, s 141.

56 : Ibid. s140

57 : Heath Practitioner Regulation National Law (NSW) No 86A, s 141.

58 : Bismark M, Spittal M, Plueckhahn T, Studdert D. Mandatory reports of concerns about the health, performance and conduct of health practitioners. Medical Journal of Australia 2014; 201: 1-5.

59 : Goiran, N, Kay M, Nash L, Haysom G. Mandatory reporting of health professionals: The case for a Western Australian style exemption for all Australian practitioners. Journal of Law and Medicine 2014; 22: 209-220

60 : Bismark M, Spittal M, Morris J, Studdert D. Reporting of health practitioners by their treating practitioner under Australia's national mandatory reporting law. Medical Journal of Australia 2016; 204:

61 : Grant v HCCC [2003] NSWCA 73 [12]

62 : Petersen R. Mild Cognitive Impairment. N Engl J Med 2011; 364:2227-22.

63 : Peisah C, Gautam M. Goldstein M. Medical masters: a pilot study of adaptive ageing in physicians. Australasian J Ageing 2009: 28: 134-138.

64 : National mental health survey of doctors and students, October 2013, Monash University, Australia. (https://www.beyondblue.org.au/docs/default-source/research-project-files/bl1132-report---nmhdmss-full-report_web)

65 : Milner A, Maheen H, Bismark M and Spittal M. Suicide by health professionals: a retrospective mortality study in Australia, 2001-2012. Med J Aust 2016; 205: 260-265

66 : Nash L, Daly M, Kelly P et al. Factors associated with psychiatric morbidity and hazardous alcohol use in Australian doctors. Medical Journal of Australia. 2010; 193: 161-166.

67 : Parker, G. & Manicavasagar, V. (2005). Modelling and managing the depressive disorders: A clinical guide. Cambridge: Cambridge University Press.

68 : Myers M & Gabbard G. Personality disorders, personality traits and disruptive physicians. In The Physician as Patient. A Clinical Handbook for Mental Health Professionals, Arlington: American Psychiatric Publishing Inc, 2008.

69 : Dr David Charles Lindsay Medical Tribunal Decision 20 August 2008 [para 671] (Council website)

70 : Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 (21 April 2015), https://www.caselaw.nsw.gov.au/decision/553085d3e4b0a12bb972f80 (accessed 31 July 2016)

71 : Health Care Complaints Commission v Quach [2015] NSWCATOD 2, https://www.caselaw.nsw.gov.au/decision/54d18f0be4b0268efc6f1114 (5 February 2014) (accessed 31 July 2016) [267] [275] [334]

72 : Health Care Complaints Commission v Quach [2015] NSWCATOD 2, https://www.caselaw.nsw.gov.au/decision/54d18f0be4b0268efc6f1114 (5 February 2014) (accessed 31 July 2016) [7] [8] [16]

73 : Health Care Complaints Commission v Quach [2015] NSWCATOD 32, https://www.caselaw.nsw.gov.au/decision/54d18f0be4b0268efc6f1114 (25 April 2015) (accessed 31 July 2016) [7] [8] [14] [16] [419]

74 : Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32, https://www.caselaw.nsw.gov.au/decision/54d18f0be4b0268efc6f1114 [11].

75 : Australian Institute of Health and Welfare 2006. Medical labour force 2004. National health labour force series no. 38. Cat. no. HWL 39. Canberra: AIHW.

76 : Frank E, Biola H, Burnett C. Mortality rates and causes among US physicians. Am J Prev Med 2000; 19: 155- 159.

77 : Christensen H. What cognitive changes can be expected with normal ageing? ANZJ Psychiatry 2001; 35: 768-775.

78 : Wijeratne C. Clinical assessment of the late-career medical practitioner. Australasian Psychiatry 2016; 24: 140 - 143

79 : Valenzuela M & Sachdev P. Brain reserve and dementia: a systematic review. Psychological Medicine. 2006; 36: 441-454.

80 : Perry W & Crean R. A retrospective review of the neuropsychological test performance of physicians referred for medical infractions. Arch Clin Neuropsych 2005; 20: 161-170

81 : Kataria N, Brown N, McAvoy P et al. A retrospective study of cognitive function in doctors and dentists with suspected performance problems: an unsuspected but significant concern. J Royal Soc Med Open 2014; 5: 1-9.

82 : Peisah C and Wilhelm K. Physician don't heal thyself: A descriptive study of impaired older doctors. Int Psychogeriatrics 2007; 19: 974-984.

83 : Medical Board of Australia. Good medical practice: A code of conduct for doctors in Australia, 2014. (Paragraph 9.2.27)

84 : Peisah C., Wijeratne C., Waxman B., Vonau M. (2014) The adaptive ageing surgeon ANZJ Surgery, 2014; 84:311-5

85 : Wijeratne C., Peisah C. Ageing and retirement in psychiatrists: Accepting the challenges of ageing and retirement in ourselves: the need for psychiatrists to adopt a consensus approach. ANZJ Psychiatry 2013; 47: 425-430

86 : Peisah C. Successful ageing for psychiatrists Australasian Psychiatry 2016; 24:126-130

87 : Waxman BP The aging psychiatrist. Lessons from our colleagues in surgery and anaesthesia Australasian Psychiatry. 2016; 24:155-6

88 : Health Care Complaints Commission v Khan [2016] NSWCATOD 32, [111].

89 : Skowronski G., Peisah C. (2012) The greying intensivist - ageing and practice. Med J Australia. 2012; 196: 505-507.

90 : Welfare of Anaesthetist Special Interest Group. Retirement and Late Career Options for the older professional (http://www.anzca.edu.au/documents/fa-wel-sig-rd-04-retirement-20161011) (accessed 6 March 2017).

91 : Epstein R, Hundert E. Defining and assessing professional competence. JAMA 2002; 287: 226-235.

92 : Breen K. Revalidation - what is the problem and what are the solutions? Med J Australia 2014: 2000: 153-155.

93 : Martimianakis MA, Hafferty FW. The world as the new local clinic: A critical analysis of three discourses of global medical competency. Soc Sci Med 2007: 87: 31-38.

94 : Medical Board of Australia. Good medical practice: A code of conduct for doctors in Australia, 2014.

95 : Medical Act 1983. http://www.legislation.gov.uk/ukpga/1983/54/contents

96 : General Medical Council 2014. The meaning of fitness to practice. http://www.gmc-uk.org/guidance/21721.asp (accessed 14th July 2016)

97 : Ibid.

98 : Ibid.


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