10th Greek Australian Legal and Medical Conference
Mykonos, Greece 2005

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THE DEMAND FOR PHYSICIAN ACCOUNTABILITY. WHERE DOES IT COME FROM? WHERE DOES IT LEAD?

Thomas B Hugh FRCS FRACS
Director, MDA National Insurance Limited

Whenever a disaster involving man-made systems occurs, human beings have a deep need to explain it in terms of "who is to blame for this?". In recent decades, this demand has become increasingly strident in relation to doctors and adverse medical events.

Doctors have for centuries accepted the need for accountability, and, in fact, lead the professions in peer-reviewed publication of the outcomes of their work. No other profession can claim the equivalent of the vast repository of critically evaluated publication of medical outcomes. The acceptance by doctors of the need for accountability is also reflected in widespread participation in mortality and morbidity meetings, and, more recently, in peer review and practice audit. These activities are now mandated by learned colleges and societies as a condition of membership and most registration Boards also make such activities a condition of continuing registration as a medical practitioner.

Demands for accountability from the public are generally channelled through Health Care Complaints Units in most developed countries; and these implement the disciplinary aspects of their rulings through notification to licensing authorities. Health departments and coroners also make direct demands for accountability; as, of course, do patients and their families, who sometimes mediate their demands through plaintiff lawyers. Direct demands for accountability may also be made through community representatives and whistleblowers, both nursing and medical. The media fan the flames of this agitation and provide a ready forum for community demands and whistleblowers.   Politicians are sensitive to this clamour and mediate their responses through directives to Health Departments and through statute legislation.

The recent controversy in NSW involving Campbelltown and Camden Hospitals provides a useful case study of the effects of rampant demands for medical accountability. These two hospitals, comprising the Macarthur Health Service, serve a population of approximately 800,000 on the south-western outskirts of Sydney. Campbelltown Hospital is a secondary teaching hospital while Camden Hospital, 15km away, is a subsidiary hospital providing less acute services such as rehabilitation, although it does include a Maternity Unit.

In November 2002 four nurse whistleblowers complained to the Health Minister about 70 alleged instances of inadequate or unsafe care at these two hospitals. The Minister referred the complaints to the Health Care Complaints Commission (HCCC), which unfortunately treated them as complaints against the Area Health Service, not against individual doctors. This meant that the doctors were not invited to respond to the complaints. When the HCCC delivered its report almost 18 months later it blamed system inadequacies for many of the problems.

The Minister was incensed that the blame had been laid at his feet and promptly sacked the Health Care Complaints Commissioner and appointed Mr Bret Walker SC to head a Special Commission of Inquiry. Additional investigations were conducted by the Independent Commission Against Corruption (ICAC), by the NSW police on behalf of the Coroner and by a NSW Parliamentary Upper House Committee.

Mr Walker issued two interim reports. A total of 27 doctors were referred by the Special Commission to the HCCC for possible disciplinary action or prosecution and a further 12 were referred for consideration of performance assessment by the Medical Board. At this stage none of these doctors had had an opportunity to respond to the complaints. Notification of a complaint by the HCCC to the Medical Board results in automatic withdrawal of "good standing" until the complaint is resolved. For those doctors, this had the effect of precluding admission to College training programs and prevented registration as a medical practitioner in most other jurisdictions in Australia or overseas. Their careers were effectively put on hold. To make matters worse, special legislation, rushed through State Parliament on the day the first Walker interim report was issued, deprived those doctors of certain rights and protected the possibly prejudicial comments of the Special Commissioner. This was truly a case of sentence before verdict, as in Alice in Wonderland.

The Macarthur complaints, when analysed, related to the type of adverse events that are regularly seen in every hospital in the developed world.[1] The actual rate of such events in the Macarthur Health Service was lower than in other comparable hospitals in NSW although, of course, this fact never surfaced in media reports. There were examples of wrong site surgery and multiple cases of simple communication errors and problems arising from inadequate staffing and resources.

The punitive tone of the interim recommendations of the Walker inquiry and the sensational treatment of the reports by the media had a devastating effect on the NSW hospital system. There was a general loss of confidence in the system as a whole and in Macarthur Hospitals in particular. Nursing staff walking in uniform down Campbelltown Mall were spat at, and there was a severe loss of morale and resignation of staff in the two hospitals. The NSW Patient Safety Improvement Program suffered a setback as doctors throughout the state became reluctant to be involved in incident reporting or analysis. There was expressed anxiety and hostility about the "Open Disclosure" policy which was being promulgated by the NSW Health Department and there was a steep increase in advice requests to medical defence organisations. This was an example of accountability gone mad.

There were two sets of victims in the Macarthur episode - first, the patients and their families, and second, hospital doctors and nurses, the nurse whistleblowers, hospital administrators, the HCCC and the Department of Health. It was also generally acknowledged that the scandal had seriously damaged the political future of the Minister for Health.

The "person" approach, epitomised by the Macarthur episode, is characteristic of past responses to adverse medical events. It has long been recognised in other high-risk domains such as aviation and nuclear power generation that this is an ineffective way of preventing future errors and that a preferable approach is the "systems" model. The systems approach accepts that human error is a symptom of trouble deeper inside a system. Human error must be the starting point, not the conclusion, of any investigation. The purpose of analysing an adverse event is not to find out where people went wrong, but to understand why their assessments and actions made sense at the time. It is a question of fixing the problem, not fixing the blame.

Mr Walker was initially dismissive of the systems approach; when it was proposed as an alternative to his punitive response he quite reasonably asked "how, then, do we identify individual culpability?"

In order to address this problem, it needs to be understood that medical adverse events are different from other adverse events in that there must first be an unravelling of the intertwined factors of the doctor's actions, the patient's illness, and the patient's constitution and personality. The system in which these intertwined elements are embedded must also be examined for its contribution to the adverse event.

Unfortunately, retrospective examination of adverse events is beset with a number of problems. Studies have shown that retrospective reviewers overestimate the preventability of medical adverse events and often have excessively optimistic views on the probable survival of seriously ill patients. Hindsight bias invariably influences the views of retrospective analysts, causing them to simplify or trivialise the decisions made by the doctor at the time. A number of studies in the psychological literature show that the harshness of judgements in a retrospective review is related to the severity of the outcome rather than the magnitude of the error and this may lead to negligence being wrongly inferred. Decisions made by doctors in uncertain clinical conditions should be judged on the stakes and the odds, not on the outcome.

A useful tool in analysing adverse medical events is Root Cause Analysis (RCA). This technique, now widely taught in the NSW Patient Safety Program, involves detailed flowcharting of the sequence of events, analysis of where barriers might be placed to prevent future similar errors and the formulation of recommendations for change. An analysis of this type is essential before the question of accountability can be addressed. Obviously culpable acts, for example where there has been a deliberately unsafe act, substance abuse by the attending doctor (this includes alcohol), a criminal act, or patient abuse by the doctor or nurse, are unsuitable for RCA and should be handled by appropriate disciplinary pathways.

In conclusion, the need for accountability is readily accepted by the medical profession, but uncontrolled demands for accountability are destructive and do not serve the public interest.

After a medical adverse event the initial response should involve RCA to unravel the intertwined elements of the problem, after which accountability can be addressed. Multiple system-based errors, rather than individual negligence, are responsible for most medical adverse events.

REFERENCE:

1. Wachter RM, Shojiana KG. Internal Bleeding. The truth behind America's terrifying epidemic of medical mistakes. Rugged Land Publishers. New York. 2004

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Copyright 2005. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at jennycrofts@ozemail.com.au