Posted on January 30, 2019 at 9:00 AM
Through special arrangement with Taylor & Francis, AJOB posts its editorials on bioethics.net. This essay and the articles it references are also available on the publisher website.
by Barbara L. McAneny & Elliott J. Crigger
PROFESSIONAL SELF-REGULATION AND THE AMA
Protecting public safety and ensuring that the medical profession is worthy of public trust have been at the heart of the mission of the American Medical Association (AMA) since its inaugural meeting in 1847.
Promoting the quality of medical education and promulgating standards for ethical professional conduct is fundamental to that mission. Our education work continues in Accelerating Change in Education, our initiative to transform undergraduate education, and our newly launched initiative to reimagine residency. And the AMA Code of Medical Ethics (the Code) continues to articulate the core values of the profession and expectations for ethical conduct on the part of individual physicians. The Code is explicitly referenced, in whole or in part, as the standard for professional conduct in every state, and thus touches all physicians in the United States, whether they are members of the AMA or not. Every physician who joins the AMA pledges to uphold the Code as a condition of membership.
Member physicians are held to the standards of the Code through the disciplinary action of the AMA’s Council on Ethical and Judicial Affairs (CEJA), the body responsible for developing ethics policy and maintaining the Code and determining individuals’ fitness for membership in the organization. In the majority of cases, members come to CEJA’s disciplinary attention because a state medical board has taken action against the individual’s license. CEJA does not carry out original investigations (though it has the authority to request that AMA do so in exceptional circumstances) and relies on the factual records generated by state boards. Although CEJA’s decision affects only the individual’s membership status, CEJA has the discretion to report actions to the National Practitioner Data Bank, and routinely does so for the most severe actions.
Overall, the council’s experience is consistent with the account of self-regulation offered by DuBois and colleagues. A cursory review of CEJA’s records over the last 8 years suggests that the types of violations the council adjudicates have not changed significantly from the pattern reported by Arora and colleagues for the period 2004–2008. Informally, council members have remarked from time to time on an apparent increase in the number of controlled substance cases; we expect that an in-depth review of CEJA records would reveal that state boards have become more aggressive in sanctioning physicians for violations involving controlled substances, some significantly more than others. Within these categories CEJA continues to observe a range of severity in ethical lapses. Sanctions to membership applied by the council also appear to be similar to earlier practice, though review did not enable us to associate type of violation with a specific range of sanctions.
TOWARD MORE EFFECTIVE SELF-REGULATION
If, as CEJA’s experience seems to suggest, there has been relatively little change in the incidence of types of misconduct that pose significant risk of harm to patients over more than a decade, what should the profession do? A robust answer, we argue, must address issues in at least three domains: response to misconduct by individual physicians, inculcating strong professionalism as a component of medical education, and addressing aspects of how we organize and deliver care that can undermine professionalism among practicing physicians.
Responding to Misconduct
Without question, it is essential that we strengthen oversight and response to allegations of misconduct by individual physicians. Physicians who have been proven to have caused or who pose significant risk of harm to the patients in their care must be held accountable. As DuBois and colleagues note, state medical boards play an essential role, but may not be fully equal to the task. In the first instance, we need to ensure that boards have the resources they need to function in a timely, effective manner.
We also need to understand more clearly how state medical boards actually function, so that we can identify opportunities to strengthen and enhance processes and practices. In its own disciplinary role, CEJA relies heavily on the boards, but has observed considerable variation in the records boards provide, in particular with respect to the reasoning behind the particular sanction imposed. We realize that this is in part a function of the state regulatory frameworks that govern individual boards. However, while we need to understand the regulatory environment—and address obstacles it poses—it is equally important to systematically collect information so that we can better understand the investigative and deliberative processes that boards employ, with an eye to identifying and disseminating practices that best protect the welfare of patients by holding physicians accountable for their behaviors, while still respecting physicians’ rights.
Degrees of Unethical Behavior as Determined by Intent
The easiest determinations are those of physicians who are using their medical degree to operate illegal enterprises like the pill mills. Fortunately, this is a rare occurrence, and should be handled by law enforcement, with the culprits permanently removed from the profession. It is more difficult to manage physicians who mean well but overprescribe. Education and supervision are useful tools for these physicians, and if the behavior continues, removal of the right to prescribe controlled substances.
As noted by Dubois and colleagues, sexual misconduct, either toward other professionals or toward patients, is sometimes about power and sometimes about sex. Having more women in the profession will do much toward equalizing the power. Changing the cultural norms such that women physicians and nurses and other professionals understand that they will be believed and protected is essential. Education, starting in public school, but certainly continuing throughout medical school and postgraduate education, to let potential sexual predators know that their behavior will not be tolerated is essential. Creation of more stringent sanctions for increasing or repeated behavior is needed, and public knowledge of the process will do much to curb impulses toward misbehavior. It is essential to have a confidential investigative process, so that we don’t eliminate innocent physicians from the workforce, but when conduct is found to be inappropriate, policies must be in place to appropriately punish the behavior.
Educating for Professionalism
However, by itself, relying on discipline after the fact is not sufficient response to the misconduct we continue to witness. We need to seek “upstream” solutions that can help reduce the occurrence of misconduct in the first place. Some of those solutions should address how we educate physicians and design learning environments that reliably model appropriate professional conduct and provide didactic instruction in professionalism.
We must continue to refine how we assess trainees so that we can identify at an early stage in their education individuals whose behavior foreshadows likely future problems. Equally important is ensuring that information accompanies trainees as they transition into residency and postgraduate training, for example, by explicitly documenting instances of unprofessional behavior and remedial actions taken in the Medical Student Performance Evaluation. Member institutions of the AMA’s Accelerating Change in Education Consortium are developing innovative approaches to undergraduate medical education that focus strongly on competency-based education and comprehensive assessment of student performance. AMA’s newly launched initiative to reimagine residency seeks to foster a similar community of innovation at the level of graduate medical education.
Performing unnecessary procedures can be from lack of education or judgment or with malicious intent to produce revenue. The first situation requires education; the second requires intervention by the medical board.
Addressing Practice Stressors
We know that a myriad of factors can affect physicians’ behavior in day-to-day practice. Whether a patient is seen early or late in the day can affect prescribing; the length of time spent at work in relation to time off work affects how diligently clinicians practice hand hygiene. Frustration with the shortcomings of electronic health records, the volume of time spent on administrative tasks rather than patient care, the intrusion of clerical work into personal time, and the sense of feeling disrespected by regulators and payers all contribute to physicians’ growing dissatisfaction with their professional lives. It is not unreasonable to think that dissatisfaction can effect physicians’ professional conduct.
We aren’t suggesting a direct link between professional dissatisfaction and violations of professional ethics, but we believe that identifying and addressing the stressors that drive diminished professional satisfaction is an important consideration in addressing physician misconduct. For example, CJEA’s experience aligns with the observation of DuBois and colleagues that the physicians most at risk to commit serious violations tend to be older, male, and practicing in rural areas. Knowing that interpersonal contact and collegial relationships within a practice and with fellow professionals outside the practice enhances physician satisfaction, might we not seek creative ways to promote such opportunities and reduce the sense of isolation rural physicians experience? Through its StepsForward program, AMA is developing practical tools to ease the frustrations too many physicians face. We know they are having a positive effect on professional satisfaction. We believe taking a similar approach to reducing the occurrence of physician misconduct deserves serious attention.
Assuring the public and the profession that lapses in professional conduct will not be glossed over is foundational to self-regulation. To fulfill medicine’s social contract we need to understand better which physicians are most at risk for falling short of our expectations for professional behavior. We need to understand better when and how we might intervene most effectively to prevent or remediate inappropriate conduct and to ensure that the bodies on which we rely for oversight are adequately supported. And we need to recognize the need for fair, reliable measures that will allow us to identify with confidence, and remove, those few individuals who will never be able to practice safely.