Recognising these limitations, in the 1990s, many jurisdictions created a ‘performance pathway’ by which investigations inquire into whether an underlying cause exists for a particular instance of unsatisfactory
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conduct and what needs to be done to remediate it, thereby reclaiming a reclaimable practitioner’s competence and thus providing for consumer safety. This has been described as a therapeutic jurisprudence approach (Freckelton and Flynn 2004; Freckelton and List 2004; Freckelton 2007), but it can also be characterised in a range of other ways. Most importantly, it constitutes an attempt to manage risk by identifying it, understanding it and, where possible, enabling remedial measures to be instituted in cooperation with the practitioner to guard against its recurrence.
Fundamentally, it stems from the proposition that competence is not guaranteed by the mere receipt of threshold tertiary qualifications and continuing vocational practice, even if ongoing professional education is engaged in. It recognises that ongoing entitlement to registered practice needs to be earned by continuing demonstration of competency, evaluated on a number of axes. One of these is maintenance of competency for the duration of health prac titioners’ registered practice and demonstration of such competency as required—for instance, by revalidation requirements as are coming into force from 2009 in the United Kingdom for medical practitioners (General Medical Council 2008b). As the College of Registered Nurses of Nova Scotia puts it, a competent registered practitioner is one who is ‘able to integrate and apply the knowledge, skills and judgment required to practice safely and ethically in a designated role and practice setting’ (Vandewater 2004).
The performance pathway acknowledges and addresses the reality that a variety of different circumstances can result in an attenuation or impairment of competency.
A significant change of orientation is commencing among regulatory bodies in Australia and New Zealand (as well as in Canada, the United Kingdom and parts of the United States) by this reconceptualisation of concerns about practitioner service delivery away from ‘conduct’ to professional ‘performance’. However, as yet the measures are halting and somewhat patchy (see Chapter 7).
Internationally, there are various definitions of unsatisfactory or unprofessional performance, but their essence is much the same.
For instance, in Victoria under section 3 of the Health Professions Registration Act 2005 (Vic), ‘professional performance’ is defined as ‘the knowledge, skill or care possessed and applied by a registered health practitioner in the provision of regulated health services’. In New South Wales, section 86A of the Medical Practice Act 1992 (NSW) similarly defines ‘professional performance’ as ‘a reference to the knowledge, skill or care possessed and applied by the practitioner in the practice of
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173 medicine’. There is the potential for incorporation also of the notion of
‘judgment’ within performance definitions.
In New Zealand, the Medical Council may assess a doctor’s perform-ance at any time in response to a concern raised by, for example, a patient, a colleague or the Health and Disability Commissioner (HDC). In conducting a performance assessment, the Council considers whether
‘the health practitioner’s practice of the profession meets the required standard of competence’ (Health Practitioners Competence Assurance Act 2003 (NZ), s 36(5)).
In the United Kingdom, the General Medical Council (2008a) has constructed a performance assessment process triggered by factors such as:
• a tendency to use inappropriate or outdated techniques;
• a basic lack of knowledge/poor judgment;
• a lack of familiarity with basic clinical/administrative procedures;
• poor record-keeping or failure to keep up-to-date records;
• inadequate practice arrangements;
• concerns over referral rates;
• inadequate hygiene arrangements; and
• poor prescribing.
Its processes are typical of performance investigations conducted in many jurisdictions. The practitioner is written to by the Council and asked to submit to a ‘performance assessment’ where the focus of the assessment is performance rather than conduct or health. When a practitioner refuses to undergo an assessment or fails to cooperate with the process, the case is referred to a Fitness to Practise Panel to consider whether the practitioner’s fitness to practise is impaired and whether action is required in relation to his or her registration.
When there is a performance assessment, it is undertaken by a ‘team leader’, who is a doctor, along with two or more other doctors and one or more non-doctors. The assessment procedure is flexible, with the assessors adopting such procedures and seeking such advice or information as they consider necessary in order to assess the standard of the practitioner’s performance. However, almost invariably assessments involve a peer review by reference to:
• a visit to the practitioner’s place of work;
• interviews with the practitioner;
• interviews with third parties, including the complainant or com-plainants in the case; and
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• a review of a sample of the practitioner’s records and practice documents.
In addition, it is standard practice in the United Kingdom for a test of competence to be undertaken, comprising formal scrutiny of the basic knowledge and skills required for the particular area of practice in which the practitioner is engaged. The assessors disclose any information they receive to the practitioner (meaning there is very little by way of confidentiality in the process from the point of view of colleagues), and allow a reasonable opportunity for him or her to comment. At the end of the assessment process, the team reports on the standard of the practitioner’s professional performance.
The New Zealand, New South Wales, Victorian and Northern Territory Medical Boards have been the Australasian pioneers of a reframing of notifications away from ‘conduct’ to ‘performance’ (see Reid 2006).
However, as yet, uptake of performance investigations (and assessments) is limited and a number of challenges remain. In its 2007 annual report, for instance, the Victorian Medical Practitioners Board identified that it had only undertaken fourteen performance investigations in its previous year and had determined to take no further action in half of the cases.
Similarly, the New South Wales Medical Board (2007: 23) undertook only twelve performance assessments and concluded only eight of them during the same period. This was in spite of the fact that the Health Care Complaints Commission referred 163 complaints during the same period which it designated as ‘performance matters’. As from 1 July 2007, the Victorian Psychologists Registration Board (2007) was enabled to undertake ‘performance investigations’. However, although it had employed a ‘Manager of Performance’ as of 17 September 2008, it had not commenced a performance assessment.’1
The Victorian Medical Practitioners Board in its 2007 Annual Report (Medical Practitioners Board of Victoria 2007: 19) identified a number of challenges in relation to performance investigations:
• They tend to be prolonged, often taking over six months.
• The performance pathway is intensive and requires cooperation from the practitioner being assessed, assistance from the relevant area of expertise (e.g. a College), and considerable coordination.
• They are stressful for the practitioners who are assessed.
To these, five other considerations might be added. First, such investigations are expensive, generally requiring senior practitioners to
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175 devote between one and three days to the assessment and reporting process. In addition, they require significant involvement from regulatory board staff. Second, selection of suitable assessors, sufficiently skilled to undertake the task and prepared to do so, is far from straightforward.
Third, identification of criteria by reference to which performance should be evaluated is also far from straightforward, other than in pro-cedural clinical work. In respect of psychiatry and psychology, the challenges are particularly demanding to identify standardised and fair assessment criteria without unduly intruding into clinician–patient relationships. Fourth, performance investigations are not always wel-comed by notifiers, who may be more concerned to receive vindication (or a process which facilitates a civil claim) for their specific grievances rather than precipitating a diffuse investigation into a practitioner’s performance that may not involve any determination about their partic-ular complaint. Finally, the effectiveness of performance investigations, assessments and resolutions has yet to be longitudinally evaluated.
While there is much to be said in favour of identifying and addressing root causes of individual instances of unprofessional conduct, as of 2009 the shift in regulatory focus from conduct to performance is only in its early stages. Only modest numbers of performance investigations have been undertaken in Australia and New Zealand, and there remains a level of resistance at a regulator level to invoking the ‘performance pathway’ rather than the ‘conduct pathway’. Lawyers representing health practitioners are commencing to identify strategic advantages in the less adversarial/accusatory approach of the performance pathway and in its less public aspect. This may play a role in changing practitioners’
attitudes towards it as an alternative to the conduct pathway. However, it remains to be seen whether the option which exists in the overwhelming majority of health practitioner notifications to conceptualise them as
‘performance’ matters, becomes the norm in investigations in the years ahead. In relation to investigations into the performance of a variety of non-procedural practitioners, particular challenges exist to formulate criteria and methodologies for performance assessments that are both fair and effective in evaluating potential practitioner deficits in competency.