The Wislang Case

IN HER MAJESTY QUEEN ELIZABETH’S PRIVY COUNCIL, LONDON, ENGLAND
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The Wislang Case

IAMRA 2006 and those "attitudes"

This month, November 2006, the Medical Council of New Zealand plays host to key sessions of the 7th conference, in Wellington, of the International Association of Medical Regulatory Authorities (IAMRA). This will provide the Council, as the registering and regulatory body for New Zealand's medical practitioners, with an opportunity to showcase its approach and arguable achievements in the field of the regulation of medical practice. The Council's current president, Professor AJ Campbell, will deliver an opening address. Seven other members of the 11-strong Council, as well as its chief executive officer, Mr Philip Pigou, will chair sessions of the conference.

Of special interest to overseas delegates at the conference may be the  innovation of the Medical Council of New Zealand in the matter of its including the '"attitudes" of medical practitioners as elements of their competence.

It was around 1999, that is during the nine-year presidency of Dr MAH (Tony) Baird, that alleged "attitudes" of medical practitioners appear to have become incorporated into the elements of medical competence as determinable by the Medical Council of New Zealand. To give an example, it was the "attitudes" (unspecified) of Dr Wislang which were criticised in a written decision by the Council in September 2000 as part of its unjustifiable condemnation of his medical competence, which became such an issue in his case on judicial review which went to appeal to the Privy Council of England. The matter of "attitudes" was, together with other Council-claimed elements of of competence, clearly and convincingly dealt with by Dr GDS Taylor, counsel for Dr Wislang, in his written submissions (see pages 26 and 30) to the High Court at first instance.

The inclusion of "attitudes" as an element of medical competence was explicitly claimed, under "What is meant by Practice of Medicine" in the Council's 2001/02 Guide to completing its Annual Practising Certificate Application & Workforce Survey. The Guide, which clearly has President Baird's fingerprints all over it, states that the practice of medicine includes

"treating, reporting or giving advice in a medical capacity, using the knowledge, skills, attitudes and competence initially attained for the MB ChB degree (or equivalent) and built upon in postgraduate and continuing medical education, whenever there could be an issue of public safety. "Practice" in this context goes wider than clinical medicine to include teaching, research, medical or health management, in hospitals, clinics, general practices and community and institutional contexts, whether paid or voluntary"

Quite a claim, and provably incorrect in respect of, at least, teaching and research.

Dr Baird's interest in "attitudes" had surfaced earlier in his originating and advocating of a strangely inspired system for the detection of medical practitioners who could be tempted to transgress professional boundaries and enter into sexual relationships with their patients (gender unspecified). One must not assume that it was Dr Baird's being a gynaecologist, and possibly jealous of the rules of conduct of such a specialist in his dealings with female patients, that led to his proposing that potentially sexually irresponsible practitioners should be clandestinely visited by mystery or surrogate (that is, undercover) "patients" who, acting as investigators of a sort, would in conversation and perhaps other ways probe the target practitioner's susceptibility to sexual misconduct with patients and report them to Dr Baird's Council.

Dr Baird's madcap and sinister solution to the problem of sex-prone doctors---reminiscent of Nazi Gestapo and other iniquitous methods of covert investigation---was received by right-minded people, including doctors, with the disdain and disgust it deserved and was understandably howled down and never instituted. Such a devious and disgracing suggestion should, of course, have resulted in the dismissal of Dr Baird as president of the Council. Regrettably, and perhaps significantly, it did not. But in respect of "attitudes", presumably still including sexual ones, Dr Baird's alarmist approach continued alive and well in the Council's casing (irregularly in the case of Dr Wislang) of the competence of certain practitioners.

The above very recent history of the development of the New Zealand Medical Council's approach to "attitudes" should, it is suggested, be of considerable concern to members of IAMRA and, more particularly, to overseas delegates to this month's conference in Wellington. Especially as IAMRA , as quoted in Career Focus  of the British Medical Journal 2005;331:170-171, in an article entitled "You show me yours and I'll show you mine---medical mobility and regulatory cooperation" has cited the New Zealand Medical Council as enjoying a special relationship with the General Medical Council of Great Britain in information-sharing of the most sensitive kinds concerning allegedly delinquent doctors.

"IAMRA and the international experience

These issues are not unique to Europe, so it is worth looking at what we can learn from others. The International Association of Medical Regulatory Authorities (IAMRA) was established in 2000. Its purpose is to support medical regulators worldwide in protecting the public interest by promoting high standards for medical education, licensure, and regulation, and facilitating the exchange of information. It has a membership of 73 regulators from 30 countries and is supporting policy analysis, research, and sharing of best practice across a range of regulatory activities. Two areas are relevant to the present discussion-the development of a fast track credentials system (FTCS) and the sharing of information about doctors' fitness to practise.

FTCS
For many years, medical regulators have required doctors who wish to practise in their territory to provide certificates of their good standing issued in the countries where they have been practising. These confirm that an individual is not subject to disciplinary proceedings in those countries. But it is difficult to guard against the use by doctors of fraudulent certificates. Even where the system works well, the transmission of documents from one country to another can be slow, meaning that doctors' registration may be delayed. To address this problem, two IAMRA members, the GMC and the Medical Council of New Zealand, began piloting the electronic exchange of encrypted data directly between regulators. The GMC has since begun to operate the same system with a number of EU regulators.

Meanwhile, the GMC/New Zealand project is being extended to include other countries and support the electronic transmission of a wider range of information (including qualifications, date of birth, sex, photograph, and passport number) intended to enable the host regulator swiftly and confidently to verify the credentials of a migrating doctor. In future, it will not be so easy for Dr A to ply his trade across the world.

Sharing of fitness to practise information
But providing information in response to a request is only half the answer. If Dr A does not tell you where he has been, you may not know who to ask for information. Further, doctors often maintain registration in two or more countries simultaneously, making it easy for them to move between jurisdictions without having to undergo the checks of their good standing that would be made at the point of entry to the register. Regulators must therefore be more proactive in the way they engage with others to ensure that those who are unfit to practise cannot use their professional mobility to flee one jurisdiction only to put patients at risk in another.

A central database containing details of disciplinary sanctions imposed is sometimes offered as the solution. IAMRA's experience shows that, although technically feasible, it is unreliable if regulators are unwilling to post information on the database. It is also poor at targeting information to where it is most likely to be useful. IAMRA is now looking at how regulators can adopt an approach based on risk assessment to disseminate information more accurately to those who most need to know."

Dr Wislang, 7 years ago and unknown to him, became a victim of the New Zealand Medical Council's information-sharing with the General Medical Council of Great Britain and no fewer than 10 other medical regulatory authorities throughout the world. That was when the Medical Council of New Zealand twice, falsely and secretly, internationally notified its disciplinary charge against Dr Wislang as being one of "disgraceful conduct in a professional respect" (for a never specified but easily imaginable misdemeanour), instead of the actual and much lesser one of professional misconduct deriving from his failure to renew his annual practising certificate.

We are reliably informed that the Council has not yet taken the trouble to correct its gross mis-informing of the 11 overseas medical regulatory authorities involved, despite that, in April 2002, it was directed to do so by the Court of Appeal of New Zealand.

Information sharing between medical regulatory authorities internationally, to be mutually useful and not unwarrantedly professionally damaging, must be, firstly, accurate and, secondly, communicated for proper purposes, not malicious or cloak-and-dagger ones; and not recklessly. In the case of Dr Wislang and the Medical Council of New Zealand one or all of the latter three appears likely.

It should raise serious concerns with the other members of IAMRA, and with medical practitioners worldwide, that at least the Medical Council of New Zealand can go so bizarrely and unconscionably wrong with its information-sharing about disciplinary charges and convictions against medical practitioners, and presumably the "attitudes" of the latter divined and pronounced upon by the likes of Dr Baird for reasons apparently all of his own.

We would think it strange if it were not open to the IAMRA 2006 conference to consider that the attitudes and administrative activities of medical regulatory authority presidents such as Dr Baird, as a medical practitioner, ought to be subject to close examination and reasonable regulation in the interests of medical standards and safety worldwide, for reasons even more compelling than those applying to the practitioners that such administrators---relying at least in part on their medical expertise---regulate and presume to report upon. Or are certain self-styled medical police chiefs---as against  bone fides medical administrator doctors---to be presumed to be forever undoubtable as to their skills, attitudes and motivations in their deciding upon medical regulatory matters of such vast importance as IAMRA is canvassing at its current conference?

We think not.

Published Sunday, November 5, 2006 3:39 PM by admin

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