14th Greek Australian Legal and Medical Conference
Cape Sounion, Greece 2013

Protecting the Unprotected

Dr Vincent Ho


Recent medical scandals in Australia including the Bundaberg Hospital scandal (1)

have drawn attention to the need for greater accountability by medical professionals. It is recognised that physicians have many varied, stressful, time-pressured and often competing demands but it is universally acknowledged that, nevertheless, doctors must be able to embrace and demonstrate professional behaviour. There is a very compelling moral, ethical and legal obligation to address issues that arise of medical unprofessional behaviour in order to ‘protect the unprotected’ i.e. patients and the wider society, who may be oblivious of whether their doctor may display significant behaviours likely to lead to harm. Such serious issues often begin to manifest before medical graduation and addressing this problem at medical school offers an opportune time to address this imperative.

The history of medical professionalism began in ancient Greece(2). Ancient Greek society revolved around a symbolic dualism that was designed to augment relationships with the immortal gods and minimise the connections to the material, physical world. In an age where the mind was revered and idealism sought after, a ripe milieu existed for the ancient Greek philosopher and physician Hippocrates to contemplate and devise an Oath that has lasted more than two millennia (3). It would come to signify the fundamental tenets of the medical profession. Today the Hippocratic legacy is clearly on display when the Oath (or variations of it) is recited at all medical school graduation ceremonies around the world (4).

Professionalism however is a difficult concept to define. No single method exists for the reliable and valid evaluation of professional behaviour (5). There are inherent problems associated with defining humanism and its components including compassion, empathy, caring, integrity and respect (6). Although medical professionalism is a domain of competence very difficult to measure, it is central to building the trust of patients (7).

Some good efforts have been made to articulate the concept although these tend to encompass a number of different humanistic qualities. For example one published and widely used definition suggests that professionalism is established upon a “foundation of clinical competence, communication skills, and ethical and legal understanding”, upon which is built the “aspiration to and wise application of the principles of professionalism: excellence, humanism, accountability and altruism”(8). In this definition professionalism connotes the standard of behaviour that individual physicians are expected to meet as they provide their specific knowledge and skills to society (9).

There have been well-meaning attempts to make the multiple components of professionalism measurable. As an example Wilkinson and colleagues (10) in a systemic review strive to make these components measurable through their clustering of definitions of professionalism into assessable parts. They were able to define  5 clusters of professionalism:

1) Adherence to ethical practice principles

2) Effective interactions with patients and with people who are important to those patients

3) Effective interactions with people working within the health system

4) Reliability

5) Commitment to autonomous maintenance / improvement of competence in oneself, others, and systems.

A strong association between poor behaviours such as irresponsibility, diminished capacity for self-improvement and poor initiative during the medical school years and subsequent clinical practice has been demonstrated in the literature (11, 12). Papadakis and colleagues (11) in a highly publicised case-control study provided evidence from three medical schools of the association between disciplinary action by state medical boards against practicing doctors and a documented lack of professional behaviours when those doctors were medical students. Among students who were subsequently disciplined, the most irresponsible had a risk of later disciplinary action that was eight times as high as that for control students, and those who were the most resistant to self-improvement had a risk of later discipline that was three times as high as that for controls. Interestingly, traditional measures of medical school performance such as academic performance have not been shown to identify students who later had disciplinary problems as practising doctors (12).

An innovative new technique has been devised to predict which doctors might be at high risk for recurring complaints, examining formal patient complaint data from  heath service commissions (13) (statutory agencies established in each of Australia’s six states and two territories which have responsibility for the receiving and resolving of patient complaints about the quality of healthcare services). The data was collected an 11 year period. The methodology involved the use of recurrent event-survival analysis to identify characteristics of doctors at high risk of recurrent complaints. It was found that 3%of Australia’s medical workforce accounted for 49% of complaints and 1% accounted for a quarter of complaints.

This approach has the ability to more accurately predict which doctors are at high risk of incurring more complaints in the future and thus offers opportunities for targeted quality improvement interventions. A question then arises: could such an approach be applied to medical students to predict doctors at risk of future unprofessional behaviour?

Although there is a strong association between medical students who display unprofessional behaviour and future disciplinary action against them, it must be recognised that the majority of doctors who are referred to medical boards for disciplinary action have no history of behaving inappropriately during medical school. And unfortunately without identification and appropriate remediation it is likely that unrecognised unprofessional behaviour during medical school may evolve into a “spectrum of unprofessional behaviour during graduate medical education and clinical practice” (11).

Perhaps the answer lies in more effectively screening out students who display unprofessional behaviours at the admissions process. However it is unlikely that applicants with personality disorders will be detected through existing medical school selection processes (14). Major psychopathological conditions are best diagnosed through psychiatric interviews and appropriately handled through sustained observation of students through the medical course. In order to manage those students whose behaviour is persistently unprofessional during medical school, policies for remediating or excluding students have been developed (15).

Such fitness-to-practise policies (FTPPs) are being increasingly used in Australian medical schools to address issues of unprofessional medical student conduct and behaviour. There is considerable heterogeneity within Australian medical schools’ FTPPs, unlike for example the United Kingdom where a centralised body, the General Medical Council (GMC) explicitly lays out expected standards of medical student professional values and fitness to practice (16).

The GMC illustrates the threshold of student fitness to practice by a raising a number of questions concerning student behaviour. These are:

1) Has a student’s behaviour harmed patients or put patients at risk of harm?

2) Has a student shown a deliberate or reckless disregard of professional and clinical responsibilities towards patients or colleagues?

3) Is a student’s health or impairment compromising patient safety?

4) Has a student abused a patient’s trust or violated a patient’s autonomy or other fundamental rights?

5) Has a student behaved dishonestly, fraudulently, or in a way designed to mislead or harm others?

There are common elements of this ‘fitness to practice’ threshold that are shared by Australian medical schools’ FTPPs. In general FTPPs represent a reactive strategy to the danger that medical students’ unprofessional conduct poses to the public and the uncertainty as to what to do with these students. The uncertainty is exemplified in a statement by leading medical academics (17) “If those of us leading Australia’s medical schools don’t know what the others are doing about the few cases of extreme unprofessional behaviour among our students, how we can do our part in protecting the community and the profession in the future?”

There is some concern that individual medical schools leave themselves open to legal challenge on their policies, remediation strategies and exclusion decisions, owing to a distinct lack of evidence that any one process works. It has been proposed that a ‘case law’ collection should be built by the medical schools with a collation of data on all serious cases that the schools have experienced over a number of years leading to significant academic penalty or exclusion (17).

One such legal case is Lam v The University of Sydney (18) which involved a second year medical student enrolled in the Faculty of Medicine at the University of Sydney who allegedly offered a sum of money to an administrative assistant employed by the university for information regarding the contents of the histology examination paper he was due to sit. Clearly such behaviour would constitute fraudulent conduct. The Student Proctorial Board determined that the charges were sufficiently substantiated and that Mr Lam should be expelled from the university. It also recommended that he should be permitted to reapply for readmission after a certain period of time provided that he could satisfy that he was a person of good character and suitable for readmission.

Lam appealed unsuccessfully before the Student Proctorial Board and the Appeals Committee of the University Senate. He then made an application to the Vice-Chancellor to exercise discretion in dismissing the adverse findings against him on the basis of new alibi evidence. The Vice-Chancellor declined to make this recommendation, and Mr Lam challenged this decision in the NSW Court of Appeal on the basis of denial of natural justice. The Justices determined that the new alibi evidence was unreliable and supported the Vice Chancellor’s actions as not departing from the requirement of procedural fairness. The appeal was thus summarily dismissed.

In general courts have been reluctant to intervene in matters of academic judgement involving students, preferring to defer to the authority of the institution (19). However it is more vexing to exclude a medical student due to concerns around unprofessional behaviour once they have entered the clinical years (20), not merely as a consequence of the challenging nature of assessment but because administrative and jurisdictional issues regarding clinical placements must also be taken into account.

Despite the fears around potential litigation, the overwhelming emphasis in the management of students with unprofessional behaviour must be protection of the general public. This is not to suggest ipso facto that students with unprofessional behaviours should be viewed through the prism of suspension or expulsion. In general students with unprofessional behaviours should have recourse to remediation in the first instance. Medical schools must be able to adopt the teaching and assessment of medical professionalism as an integral part of medical school curricula.

The Australian Health Practitioner Agency (AHRPA) manages the registration processes for health practitioners and students across Australia, as well as supporting the National Boards of the different health disciplines in their role of protecting the public (21). Any entity (individual or institution) is able to make a voluntary notification to AHPRA about a student that they believed “has or may have an impairment that they believe may harm the public”. After receiving such notifications AHPRA assesses all such notifications to determine whether an appropriate Board should take immediate action to protect public health or safety. Notifications by individuals or institutions that are made in good faith are provided with protection from civil, criminal and administrative liability under National Law (22). Historically medical schools have been reluctant to report their students to external bodies preferring to deal with issues of professionalism internally (15).

There is thus a real opportunity for AHPRA and the medical schools to cooperate to combine their experiences and establish more effective student oversight and remediation programmes.

The American Board of Internal Medicine asserts that direct observation of medical professional behaviour is probably the most reliable, valid and useful means of assessing physicians’ professionalism and humanism (23). Papadakis and colleagues agree that the measuring of professional behaviour and other aspects of professionalism may be meaningfully achieved through multiple observations by many evaluators (11). Luijk and colleagues (20) write that an assessor “must see the student regularly and during a lengthy period of time” and believe that “only under these conditions can a valid judgement be made because professional behaviour can diminish over a longer period of time". Unfortunately it is becoming uncommon for medical students to be directly observed by faculty during any substantial portion of a clinical interaction with a patient (6). Direct observation is time and labour intensive and with a large number of medical students in a particular cohort, represents a huge logistical challenge.

Wilkinson and colleagues (10) have found using their assessment blueprint that assessment of clinical encounters alone is unable to measure the totality of a student's professionalism, and thus several additional tools will need to be utilised. One of these is multiple source feedback (MSF) also known as 360 degree feedback and involves the collation of data on an individual’s performance from a number of stakeholders.

Traditionally medical educators rely on professional behaviour alone as the primary measure for professionalism without giving proper consideration to students' underlying attitudes (24). Students can fake professional behaviour to elicit positive reactions from observing assessors and conversely students who at times behave unprofessionally in response to societal/contextual pressures may actually have professional attitudes.

Rees and Knight (25) present a socio-cognitive psychological approach to professionalism attitudinal assessment by adopting Malle’s folk-conceptual theory of behavioural explanation (26). This theory examines how people make sense of behavioural events and denotes three levels of behavioural explanation: conceptual, psychological and linguistic. The conceptual level involves explanations of intentional and unintentional behaviours through the lens of reasoning and causality. The psychological level analyses the explanations that underpin behaviour while the final linguistic level addresses the articulation of an individual’s explanations of behaviour. Malle’s theory through exploring the content and articulation of individuals’ explanations of behaviours, provides students with the opportunity for critical reflection on their own behaviours and can help shape model professional behaviour in the future. Critical incident analysis with reflection on an unprofessional behaviour is one practical method in which medical schools can adopt and apply Malle’s theory of behavioural explanations to educate and remediate students that lack professionalism.

There is now good evidence to suggest that direct observation and role-modelling around experienced and well-respected doctors can lead to a greater appreciation of professionalism by medical students. A descriptive cross-sectional study using interpretative analysis of anonymous 10-item questionnaires was conducted at the University of Patras Medical School (UPMS) in Greece (27). The study sample consisted of 134 undergraduate students in their last two clinical years at UPMS. The last two years take place in the wards of the teaching hospital where students observe and participate in the care of patients under the supervision of doctors. They also follow the senior members of their medical team and academic staff in everyday clinical duties.

In the survey great significance was attributed by students to daily clinically-oriented activities in the cluster of behaviours consistent with medical professionalism. Daily clinical practice in the wards was regarded by students as the most effective way to actualise the core elements of their professionalism. Students appreciated the structure of an integrated curriculum, and the opportunity for informal and reflective discussions with members of academic staff, acting as medical professionalism role models.

At my own Australian medical school - the University of Western Sydney; assessment and teaching of professionalism is an integral feature of the medical curriculum. Directly observed assessments such as mini-CEX are mandatory assessments in the clinical years and a professional subdomain is part of the marking criteria for end-of-term assessments.  Markers are asked to observe students closely throughout their clinical rotations and ask for multi-source feedback (MSF) in formulating their overall grade for the rotation. There are ample opportunities for critical incident analysis though this is currently not compulsory. Attendance is very carefully monitored to ensure that students spend sufficient time on the wards and in clinics. Clinical academic and conjoint clinical staff strive to be good mentors and role models for the students.

We have been able to readily identify students that have shown unprofessional behaviour through the results of multiple assessments conducted by multiple assessors. Where a student has been identified as unprofessional during their term, an in-depth discussion is initiated between the clinical rotation supervisor and the Clinical Dean of the medical school. The student has an interview with the Clinical Dean and any mitigating circumstances brought out to the fore. Remediation is provided and the student given an opportunity to repeat the rotation again during their summer holidays thus avoiding failure to progress the year through a reprieve.

Professionalism flourishes only if supported by the leaders and educators of the medical profession (28). Reactive strategies have been adopted such as the development of fitness-to-practice policies at many medical schools. These are controversial and the legalities for a challenge are unclear even if a ‘case law’ collection is built, although contemporary legal cases involving student challenges and universities have shown that courts do respect the right of academic institutions to set and maintain academic standards and policies. Punitive sanctions on students while justifiable may be more difficult to exact on unprofessional students in their clinical years. That notwithstanding, clinical supervisors must err on the side of protection of the public when assessing students that have demonstrated unprofessional behaviour.

In the first instance energy and attention should be focused on the nurturing and remediation of students who have displayed unprofessional behaviours at medical school. This is apt considering the strong association between identified unprofessional behaviour in medical school and future disciplinary action. The majority of doctors who are disciplined by state medical disciplinary boards however do not have a history of behaving inappropriately at medical school and thus predictive methodologies while helpful only partially address the issue.  

There is a real exigency to actively introduce the teaching and assessment of professionalism in our medical school curricula. These include the adoption of multiple assessments such as directly observable student-patient interaction, multiple source feedback, role modelling and critical incident analysis. The latter may lend itself well in a modified form for professionalism attitudinal assessment.

The time and labour intensive nature of clinical professionalism teaching and assessment along with the explosion of medical student numbers in recent years in Australia poses substantial challenges. This does not mean that this should not be attempted because arguably the most important task facing medical educators today is ensuring that our students consistently demonstrate the attributes of medical professionalism (29). The ‘unprotected’ public that both medical students and doctors serve, deserves no less.


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