Can patients trust the Medical Council?

With the enactment of the Health Care Professions Act, the Medical Council has undergone a modicum of reforms after 44 years of its existence, partly because it was felt by the Government that it had fallen out of step with the community's needs and expectations, and partly as a result of Malta's accession to the European Union.

How widely and openly the Government had consulted on its proposals for reform is not stated in the Medical Council's Annual Report for 2004. This report can be viewed on www.health.gov.mt/ statutory-bodies/medcounc.htm. Maybe the Minister of Health will shed light on this matter in his column in The Times.

On September 6, 2004, The Times carried an editorial on the Medical Council. The penultimate paragraph of this editorial stated: "So where do we go from here? The Medical Council in its current state cannot command public confidence and may as well be disbanded.

"Alternatively, the government should revisit the law which gives life to the body and impose more rigorous procedures to govern its operation. In short, the council must be turned into a fair and transparent organisation and seen to be one."

The Minister of Health has failed to take up this challenge; he seems to have wilfully buried his head, ostrich-like, and to concentrate in his column on other matters he judges are of higher import. His silence to date suggests, at best, a dismissive or complacent attitude, and, at worst, a stubborn and paternalistic refusal to acknowledge the need for a continued dialogue on the reform of the Medical Council.

2004 annual report

It is inconceivable how, in this day and age, the Medical Council has not seen it fit to have its own Website to enable the public to have access to information pertaining to the council's composition and functions as well as to key issues, such as good medical practice, fitness to practise, appraisal and assessment of doctors and revalidation.

A Website is an effective and economical means to provide current information to the public, particularly to patients and their dependants. Bodies that want to gain public confidence will need to account publicly for their performance, at least by publishing, among other things, an annual report on their Website.

There exists no clear and unambiguous statement in the report on the Medical Council's paramount concerns and overarching goal. As I see it, the Medical Council is, after all, the regulator of the medical profession. Its purpose is to protect, promote and maintain the health and safety of the public by ensuring proper standards in medical practice. It is not there to protect the medical profession, which is protected by the Medical Association of Malta.

The Medical Council acknowledges that it was not possible to have the Medical Register printed on time. Judging by what appears to be one of the Medical Council's traits to proceed at a snail's pace, I very much doubt whether it would be able to set a deadline for the publication of the Register.

The Register should be at the heart of its business for it exists to give patients and the public confidence that their doctor is up to date and fit to practise. Revalidation will make that a reality. Regulating bodies that want to gain public confidence will need to account publicly for their performance.

The report states that, as a result of its reforms, hearings would now be much more frequent and expeditious. Certainly, the unreasonable delay in the Medical Council's resolution of cases prior to the publication of the report does not bode well for the future adjudication of cases.

Given that the safe care of patients by doctors should be the paramount concern and overarching goal of the Medical Council, I would expect it to be more robust and to move faster in its procedures in the knowledge that undue delay tends to have deleterious psychological effects on patients and their dependents alike. In addition, undue delay in allegations of sexual abuse and serious neglect by doctors poses a significant risk to the public. Certainly, such a scenario does not command public confidence.

Lay representation

Prior to the legislation on the constitution of the Medical Council, the Government should have avoided the temptation to 'window-dress' the Medical Council with a mere two lay members who, in effect, constitute just 16 per cent of its membership. To my understanding, one of the two lay members is a priest.

Complainants will inevitably question the impartiality of doctors who sit on the Medical Council and who are part of the medical institution. While professional medical input on the Medical Council is essential, it should not lead to its domination in terms of numbers. When there is no lay majority, some regular outside scrutiny may be necessary to maintain patient confidence.

Dame Janet Smith, a UK High Court judge who led the Shipman inquiry, lists more than 100 recommendations for change in the reconstituted General Medical Council. She was of the opinion that the number of lay members, who had already constituted 40 per cent of the General Medical Council, should be increased.

It could be argued that, in Malta, particularly in the absence of highly professional patients' rights organisations, such as exist in Germany and the UK, a much higher lay representation would engender the highest public confidence.

The report fails to mention whether the Medical Council does periodically conduct a governance evaluation review by an independent reviewer. A review of this nature would include issues such as the Medical Council's structure, constitution and governance; this would, in turn, meet the requirements of a modern regulatory organisation and reflect best practice.

Reform - out of Government's depth?

The Medical Council needs to demonstrate that it has the vision, commitment and capacity to play its part in developing and delivering an enhanced model of medical regulation fit to meet the needs and expectations of patients and the community. What I hear from a growing number of patients and, sometimes, from their legal representatives, who have made a complaint against a member of the medical profession, are troubling accounts of lack of effectiveness, inclusivity, accountability and transparency - certainly, these are some of the significant marks that underpin modern regulation.

Mention the Medical Council to some members of the medical and legal profession, or to patients and their dependants, and you must be ready for anger and despondency. The Minister of Health seems reluctant to acknowledge that public confidence in the Medical Council is very low. It would appear that a radical reform of the Medical Council, as it exists today, is out of his depth. If so, the Opposition's and media's call for a reshuffle of some members of the Cabinet has begun to make a lot of sense to me.

How can the public trust the Medical Council when, for instance, as it is being alleged in the media, it gives short shrift to a patient's complaint against a consultant surgeon who refused to give her access to a copy of his medical records and deprived her of her right to informed consent? How can it ever be just, or seen to be just, when the Medical Council grants the consultant surgeon access to the complainant's sworn affidavit on the one hand and denies the same patient her right to gain access to the consultant's written rebuttal on the other?

The patient sought guidance from the Commission for Data Protection on her understanding of her right of access to medical records. The Commissioner for Data Protection ruled that the consultant was in breach of Article 26 (1) of the Data Protection Act for failing to provide an adequate level of security in terms of his medical records.

The Medical Council yet again made short shrift of the Commissioner's ruling on the grounds, as I strongly suspect, that the patient's complaint is frivolous and in no way related to good medical practice. Only a public statement by the Medical Council on what it considers good medical and legal practice will do if it wants to gain public trust.

The editorial of The Times, to which I have referred, suggests that, in its current state, the Medical Council cannot command public confidence and may well be disbanded. Alternatively, the government should revisit the law and impose more rigorous procedures to govern its operation. I am supportive of professional regulation and I do not suggest that the Medical Council should be disbanded. So where do we go from here?

First, the Government must launch, without delay, a call for ideas from lay and professional bodies on how best to achieve a radical reform of the Medical Council. Secondly, the Medical Council's annual report must be scrutinised by a Parliamentary Select Committee. Thirdly, there must be greater patient and public involvement - lay representation on the Medical Council must be greater than what it is now; in addition, lay members should be selected on the basis of experience and competences through open competition and not appointed by the Prime Minister. Moreover, the values and standards which define good medical practice should be developed, maintained and imposed in partnership with the public.

Fourthly, given that the safety of the patient is the paramount concern and overarching goal of the Medical Council, it is important that there are adequate Government resources to fulfil the Medical Council's necessary functions.

Fifthly, everyone, patient and doctor, is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. This is the backbone of justice.

Sixthly, the government should create an independent body, if this does not already exist, to ensure that professional regulators comply with the principles of good regulation. Finally, the government should introduce legislation for a Freedom of Information Act that would empower, among other things, a patient to gain access, within certain limits, to the Medical Council's records.

In the interim, the Medical Council must leave no stone unturned to create its own Website. The format of the UK General Medical Council Website would be an ideal model to adopt. Regular, consistent and reliable publicity of the Medical Council's work will help to build trust. Even if there were universal access to the Internet, a Website would not be adequate publicity by itself. The Medical Council must publish other paper material, such as a Patients' Charter.

I hope that Government, Opposition, and the medical and legal professions will publicly embrace, wholeheartedly and unequivocally, a radical reform of the Medical Council in the interests of patients and their dependents alike.

The government must make up their minds whether this is what it really wants. If this is what it wills, it must signal its intentions clearly and decisively. The Opposition must also play its part. During its two years in office and since, the then Minister of Health and now Shadow Minister seems either to be totally oblivious to the problem of complainants and their dependants, or bereft of sound ideas regarding the present state of the Medical Council.

The medical and legal professions have the talent and ability to give strong leadership and express their views publicly on the present state of the Medical Council; for whatever motive, the vast majority opt to keep their professional opinion to themselves.

Some members of the medical profession may see a radical reform of the Medical Council as a further intrusion into their practice. This should never be the case. I am convinced that the majority of our doctors are highly committed, competent and conscientious, and would welcome a change of image the Medical Council currently portrays, that of a regulatory authority pontificating on the doctor-patient relationship.