9th Greek Australian Legal and Medical Conference
Rhodes, Greece 2003

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ACCREDITATION AND THE SEPARATION OF POWERS

Dr John H. Maynard and Stephanie A Forgie.
Commonwealth of Australia Administrative Appeals Tribunal

In many countries accreditation has become a method of ensuring quality of service or product. Australia has led the way in accreditation and quality systems. In many areas, accreditation has become a requirement for payment by government for many of our services. This accreditation of an organization to be paid as a provider should be distinguished from licensing of an individual to do the job. Where the law requires an individual in a particular profession or occupation to be licensed to actually practice in that profession, then registration, and the regulation of that registration, is a form of accreditation of the individual. This requires educational qualifications as well as demonstration of continuing education. Perhaps that is one of the reasons we are here today.

The paper by Associate Professor Chen Duanhong, given in Melbourne last year, emphasised the problems of regulation and licensing in China and what is a reasonable government involvement. Prof Chen stated that among the “excessiveness of licensing requirements”, that were present in China are; “duplication of licensing authorities, lack of uniformity and consistency, no public participation, unreasonably costly, extra fees collected, applicants uncertain as to the result and ineffective policing of licenses”.

Who are the stakeholders and what is the process of accreditation?

The stakeholders are:

  1. The public
  2. The body undergoing accreditation
  3. The government at all its multiple levels
  4. The professions
  5. The press
  6. Other agencies and associations.

What is the process of accreditation?

First there must be a set of standards produced by Standard setting authorities. These are standards or requirements produced by a body for an industry or profession. This must allow for progress and for development.

There must be a continuing process with standard setting, the standards must be realistic and achievable and the body setting the standards must be acceptable to the stakeholders. For the standards to remain contemporary there is a requirement that there is input from the other authorities in this cycle.

The second step in the process is for the inspection of the service or product by an approved agency (approved by the licensing authority). Who pays this agency is an additional problem. This is the Inspecting Authority.

The third step in the process is for accreditation or license to be supplied if these standards are achieved. This Accreditation or Licensing Authority should relate to all the other authorities, but not control their operations or be part of them.

The fourth step in the process is for the payment of a better or improved rate by the Payment Authority for the service or product that is accredited. The question arises as to whether the payment authority (often the government) should pay the inspection authority personnel.

Additional authorities, which are important to the accreditation process are:

  • Quality Assurance Authorities
  • Education and Training Authorities
  • Government
  • Press
  • Public

All these authorities must input to the Standard Setting Authority who in turn is obliged to communicate with any new standards or requirements before implementing.

Questions arise from this. What should be the weighting and perception of weighting and bias in this separation of powers?          

For example,

  • should the payment authority pay the staff?
  • should they be located in the same building or offices?
  • Should there be an Accreditation Appeals Tribunal for all accreditation matters?
  • How much should the inspection authority contribute to education and improvement?

Educator versus Enforcer

ACCREDITATION MODELS

Model 1: Minimal government involvement

  • Independent operation
  • Internal quality activities
  • No government surveillance
  • No government intervention

Model 1 strengths and weaknesses

Strengths

  • minimise duplication

Weaknesses

  • no mechanism for comparison    
  • reporting to public selective
  • quality takes a backseat to profit

Model 2: Direct government control model

  • Government direct control
  • Government legislation
  • Government inspection
  • Licensing of service or product

Model 2 strengths and weaknesses

Strengths

  • maximise reporting to government
  • minimise duplication of activity

Weaknesses

  • no guarantee of accuracy of information
  • services must maintain regulation deficient areas
  • self-improvement culture would not be fostered
  • work to minimum standards only
  • conflict of interest with government funding
  • regulatory framework would not be flexible to changing circumstances regarding quality

Model 3: External government review model

  • limited government regulation
  • external government review
  • internal service or product manufacturer review

Model 3 strengths and weaknesses

Strengths

  • increases accountability of government to public
  • increases the range of information government has on service quality
  • culture of routinely monitoring quality is encouraged by mandating accreditation

Weaknesses

  • quality is less likely to be a continuous process
  • data could be misinterpreted by the government
  • government has other priorities that will cause quality to be reduced at the expense of cost

Model 4 Shared involvement

  • overseen by third-party
  • promote accreditation
  • develop benchmarking system
  • provide education and advice
  • licensing by government
  • separate standard setting bodies
  • separate external quality assurance bodies

Model 4 strengths and weaknesses

Strengths

  • the validity of the process enhanced, because the third-party is at arm's length from government
  • the potential for conflict is reduced , because the purchaser and quality monitoring are separated
  • quality improvement is fostered , because the third-party is involved
  • expertise is developed in quality by the third-party
  • the purchaser receives valid interpretable data, which allows it to be accountable to the community

Weaknesses

  • ideally a range of third-party contractors need to ensure contestability .
  • a single third-party may not be able to address all areas .

Examples are present in the hospital, general practice surgeries, pathology laboratories, nursing homes, therapeutic goods manufacturers, engineering firms, oil rigs, law firms and pharmaceutical product manufacturers.

Details and examples given here.

For an individual to practice in some areas or professions, the Government registers the individual. It is here that the registration boards may differ from, or not even have, the requirement of continuing improvement and feedback that is mandated by accreditation and inspection.  Such areas (not in any order of course) are:

  • Specialist medical practitioners,
  • General medical practitioners,
  • Migration agents,
  • Accountants,
  • Pharmacists
  • Physiotherapists
  • Lawyers
  • Other areas such as naturopathy have no such registration.

Protection of the public

In the case of Pillai and Messiter New South Wales Court of Appeal in 1989 Justice Kirby made the following comments:

"The purpose of discipline is to protect the public."

“The purpose of providing such a drastic consequence is not punishment of the practitioner as such but protection of the public. The public needs to be protected from delinquents and wrongdoers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the relevant roll of practitioners; at least until they can demonstrate that the disqualifying imperfections have been removed."

This comment does not just apply to the medical profession, about which the case referred.

The role of press

What is the right to know of a problem with accreditation that the provider is attempting to address?

The case of General diagnostic laboratory Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169 (12 March 2002) Illustrates the problem, where one element of the service falls short, but other elements are satisfactory. Should the whole service be penalised, whilst this matter is addressed?

  • External quality assurance authorities
  • Education and training authorities
  • Government authorities
  • Governments act as a reactor, not a leader in most aspects

In conclusion, it can be seen that as in the legal process, where a separation of powers prevails -- lawmaking, the judicial process, and the policing of law all are separate, but interconnected entities.

Like the legal process, a separation of powers should exist in accreditation and licensing of services, processes and products. To do this the standards authorities, accreditation authorities, payment and reimbursement authorities, inspection authorities, quality assurance program authorities, and education and training authorities should be all separate and seen to be separate. The question is still present should individual licence to practise be also subject to separation of powers and an accreditation tribunal?

References

1. Chen Duanhong (Associate Prof) Law School Peking University.

“Reasonable government or Limited government in licensing? A critical survey of the draft administrative licensing laws of the People's Republic of China.” Presented at the Australian Administrative Appeals Tribunal education Seminar 7th August 2002.

2. John H. Maynard , " The regulation of medical laboratories in Australia” Clinics in laboratory medicine -- volume 11,  No 3, September 1991.

3. The Riverside Nursing Care Pty Ltd. and Secretary, Department of Health and Aged Care. (2003) , Administrative Appeals Tribunal V2000/533 S.A.Forgie (Deputy President) and J.H Maynard (Member)

4. Pillai and Messiter (no 2) New South Wales Court of Appeal 1989 Kirby P. Samuels, Clark JJA.

5. Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169 (12 March 2002) S.A.Forgie (Deputy President)

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Copyright 2003. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at jennycrofts@ozemail.com.au