Is Self-Regulation Dead?

I believe the term ‘self-regulation’ is well on its way to the dustbin of history.”

With this, the registrar of the College of Physicians and Surgeons of Ontario (CPSO) wrapped up his final note in From the Registrar’s Desk.

He went on,

In the future, College work will no longer be described as ‘the privilege of self-regulation,’ but instead ‘the responsibility of medical regulation.’

Candor comes easy when people leave office.

Is Self-Regulation Dead?

 

Was the registrar simply making an observation, or was he stating what he believes to be good? Does he believe self-regulation belongs in the dustbin?

I know many doctors who became Chiefs of departments. Chiefs oversee quality. They handle patient complaints.

Chiefs see problems before they become patterns. A good Chief tries to build safety into a department to prevent problems becoming patterns.

Good Chiefs try education, encouragement and incentives as ways to improve quality.

But they never eliminate problems, and many Chiefs start to despair.

So, they take charge.

They make tough decisions.

They put their faith in power: rules, oversight, punishment.

After 10 years in charge, some Chiefs are damaged; irreversibly anti-physician. They lose hope in clinical judgement and put their faith in systems instead of people.

New Psychology

The well known Stanford Prison Experiment assigned students to be either jail guards or inmates.

Our planned two-week investigation into the psychology of prison life had to be ended after only six days because of what the situation was doing to the college students who participated.

In only a few days, our guards became sadistic and our prisoners became depressed and showed signs of extreme stress.

Remember: the students were acting. None of the ‘inmates’ were real inmates. They were all innocent. But the guards saw the inmates as criminals.

If the Stanford Experiment is true, then those at the CPSO, who believe self-regulation is dead, will become something different. They will see themselves as medical regulators. They will not see themselves as helping to self-regulate an honourable profession. They will assume authority.

Their ethos will change. But maybe that change started long ago?

Separation of Power

A King can act as judge, jury and executioner. But western parliamentary democracy separates power.

Developed countries have those who create laws, those who enforce laws, and those who decide whether a law was broken.

Monarchs and dictators assume all three roles.

Bad systems continue until people fight back, or the system morphs into something worse. Eventually, all bad systems fail.

If self-regulation is dead, then the College is dead. If self-regulation is dead, then we have a government regulator. We should stop pretending our fees are for “the privilege of self-regulation” and start calling them a tax paid to our regulator.

And then we should demand that the College operate on the shared values of our parliamentary democracy.

We should insist on clear boundaries between those who create the laws, those who enforce the laws, and those who mete out punishment.

First Principles

The retiring registrar raises fundamental questions:

How should we structure society?

Should we have laws to define limits and allow freedom?

Or should we have rules and regulations, with overseers to monitor every move and keep us in line with ‘best practices’?

One way gives us western, parliamentary democracy. The other gives us rule by a small group of elites: representative democracy versus oligarchic tyranny.

As society loses interest in political principles, it loses the ability to self govern.

Does the retiring registrar endorse the change he describes or is he just telling us about a change that’s out of his control?

It’s not clear.

But given the direction of the CPSO over the last 15 years, I’d don’t expect anyone from the College to resist it.

 

*****

 

 

 

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29 Replies to “Is Self-Regulation Dead?”

  1. Excellent points, Shawn.

    That said, I feel ambivalent about self-regulation since the term is coextensive with the passage of licensing laws. The laws gave doctors a privilege in exchange for which they were supposed to “self-regulate.” But “self” applies to the individual, not the group. The project was doomed from the getgo.

    It truth, only patients can and should regulate doctors. Licensing laws denied patients that right and power.

    1. Hey Michel,

      Thanks so much for sharing a comment. Your thoughts remind me of a lecture given by Milton Friedman at Mayo in the 1970s: https://www.youtube.com/watch?v=ss5PxPlnmFk

      He makes a great argument about why licensing does not guarantee quality and only protects the profession granted the licence. It’s a state sanctioned monopoly designed to limit entry into a profession, according to Friedman. After discussing these ideas with the outgoing President of the CPSO, he made a great point about licensing being a minimum bar, a cudgel in a sense, to impose on doctors. Behave poorly, lose your licence.

      I guess that begs us to ask the question: Does the process of punishing doctors by taking away their licence offer the best means to improve quality?

      We can do better. We should ask for more. But most docs are too scared to speak about it.

      Thanks again for taking time to read and share a comment!

      Cheers

      1. Hi Shawn,

        I don’t buy the argument that licensing is a minimum bar, and everything that I read and wrote about licensing shows otherwise, especially if you look at the historical data.

        For example, pre-licensing the trend was one of clear improvement over quackery and lower costs. Once licensing was introduced, costs skyrocketed and much abuse of medical power began to take place that makes the old snake oil salesmen look rather benign in comparison.

        What trips people up is that technological innovation has blossomed in the twentieth century, and they think that it did because of licensing, when in fact it’s a simple correlation and much technological innovations also preceded licensing.

        Keep up the good work!

        Michel

        1. All good points, Michel! It becomes an almost impossible task to convince anyone of the version you tell. It’s true for other industries, but people wedded to a narrative don’t want to consider something different. I have not read enough about the changes just before and after the Flexner report, licensing , etc. If you have a good reference book on the topic, please share the title!

          Thanks again

          1. Thanks, Shawn. Yes, I don’t hold any delusion that my views will have a wide audience, particularly among doctors. Here are some references:

            I wrote this about the Mayo Clinic which was run by an unlicensed physician (like most North American institutions of the late 19th century, by the way, including Johns Hopkins, The Brigham’s, McGill, etc…): http://alertandoriented.com/intolerable-laissez-faire-in-medicine-the-early-years-of-the-mayo-clinic/

            I wrote this about the disagreements between Flexner and Osler on the unhealthy direction that licensing was going to take medical education into: http://alertandoriented.com/flexner-versus-osler/

            I wrote this about the economic costs of licensing, and the fateful chain of events that the Flexner reform gave rise to: http://alertandoriented.com/an-economic-history-of-the-american-health-care-system-part-1/

            These posts will have hyperlinks to the pertinent resources. By-and-large, the standard medical histories are all in favor of licensing, unsurprisingly, but those books are still helpful because the authors generally give an accurate picture of the state of affairs before and after Flexner.

            The current reference about the effect of licensing is Kenneth Ludmerer’s book Learning To Heal (https://www.amazon.com/Learning-Heal-Kenneth-M-Ludmerer/dp/0465038808/). Despite arguing the the reforms were necessary (or, at least, unavoidable), Ludmerer admits that much of Flexner’s claims were unsupported, and that medicine was naturally improving on its own.

            Another book which I found helpful is Shryock’s Medical Licensing in America 1665-1965 (https://www.amazon.com/Medical-Licensing-1650-1965-Professor-Harrison/dp/0801805910/). The author is highly partisan in favor of licensing but the book is a rich documentation of the history of licensing.

            Finally, on the libertarian side, there is a great article by Canadian historian Ron Hamowy “The early development of medical licesing laws in the United States 1865-1900: (https://mises.org/sites/default/files/3_1_5_0.pdf). Hamowy really does a great job documenting the shenanigans of the American Medical Association during that period of time, and what little claim it had that its members practice superior or safer medicine.

            I know that’s more than you asked for, but I rarely have a receptive audience!!

            Michel

  2. I appreciate the need to weed out the bad apples, but how do we protect the science of our profession from those who seek to undermine it (i.e other healthcare providers with less training, alternative medicine practitioners, or anti-science advocates)?

    If the train has left the station, then how can physicians engage in contributing to the direction of how the profession is regulated? Will organizations like the OMA and the Royal College be the voice of doctors? Or is the task of protecting our profession futile because we cannot bite the regulatory hand that feeds us?

    Thank you for sharing a thoughtful article.

    1. Great questions, Alkesh!

      You touched on the strange relationship doctors have with the regulator. On the one hand, it gives medicine a monopoly through licensing. On the other, it condones a type of rule that goes against the fundamental principles of our parliamentary democracy. On top of this, every other provider has been granted greater and greater scopes of practice. But doctors find that even small changes in their current clinical work puts them under the microscope as having engaged in a ‘change in scope of practice’, even though they may have had thousands of hours of training in it already. So medicine gets constricted while everyone else gets expanded. I don’t think it’s working so well for us.

      As for other forms of care and other providers, I suggest we let the best care win. It already works that way. If people think that they would rather cure their cancer with energy or herbs, they can do so now. I think we need to get back to our roots: providing the best care we can within the doctor-patient relationship based on an oath of commitment to our patients.

      Thanks so much for taking time to share some really great questions!

  3. For over 25 years medical regulation in Canada has been described as “professionally-led regulation” rather than “self-regulation” since non-physicain public members on College governing Councils and hearing committees play a large role in the regulatory process. For all the regulated health professions in Ontario public members constitute just one less than half teh memebership of the governing Council

    1. Thanks Dennis. Good point. There are many lawyers and lay-people in the regulatory colleges, for sure.

      It’s be interesting to know if you support having the same people hold the power to create rules, enforce the rules, and then punish doctors for not following the rules?

      Cheers

  4. I’m not sure what rules you are referencing. In terms of ethical conduct rules, most College Codes of Ethics are very substantially based upon the CMA Code of Ethics which reflects the perspective of colleagues across the country

    1. Rules about charting, cleaning, training, re-training, supervision, incorporation, privileges, prescribing, communicating, etc, etc, etc Regulatory colleges do not exist to draft high-minded ethical principles for conduct. Colleges dictate crisp, clean policies, rules and regulations. They have to be crisp or the lawyers hired to protect doctors from the college would tear the rules apart.

      There are so many rules now, I highly doubt that most doctors are aware of all the rules, policies and regulations that their own colleges impose on doctors….never mind all the provincial and federal legislation…and the hospital rules and regulation….and departmental rules and regulations….and departmental clinical policies. Having served as Chair Health Policy for 5 years, I ran into new material every single meeting that I, as a physician, was supposed to have known about.

      I’ve been told that one of the biggest cost drivers for malpractice insurance has to do with defending doctors against actions by their own college. The system needs to change.

      Cheers

      1. I couldn’t agree more. Shawn. Way too much red tape, stifles productivity and one’s better judgement.
        Traditionally the illusion has been cast to suggest the College and its members were all part of a mutually beneficial whole, for the doctors by the doctors, perhaps in a time far away.
        Regulation is necessary but our professional relationship to it is essentially adversarial and should be considered as such. The OMA should unite to tame it.
        There are no friends at the College for the frontline doctor without inside connections and so it should be.
        Let’s unite under the banner of the OMA and stop the divisive delusion of self-regulation.

        1. Thanks so much for sharing this, Nick. You are right: We can do much better.

          I’m surprised that no one had pushed harder on the idea that we cannot have one institution make and enforce laws while punishing lawbreakers at the same time. Maybe we had the illusion that we were doing it to ourselves and so it was okay?

          Great to hear from you!

          Cheers

          1. To make rules, enforce them and punish them, is this not tyranny? It is usurping doctors’ freedom of conscience ; to continue earning a living as frontline comprehensive doctors we are being asked to give up our autonomy, act against our value system. What then do we have left? Have we broken our backbone? Will the public respect us 30 years from now when the consequences of these various social experiments manifest themselves? What then will we left of us?
            It is time to redefine the role of the regulator, it has no right to interfere in the realm of one’s deepest convictions or our self-autonomy.

            It had indeed a mighty unstoppable beast for far too many years left unchecked left much destruction in its wake but it can put it back to its rightful place if we unite to tame it.

            Go OMA!

  5. CPSO Tribunal is not a Court. Big difference. CMPA does not pay for Appeals so docs make deals as they often can’t afford $100,000 for Appeal. Charging docs $3600 a day for Tribunal costs also forces many docs to capitulate. Best to eliminate CPSO Have Michigan style licencing dept at a few hundred dollars a year. Patients can go to Small Claims Court withput a Lawyer. Most personal injury lawyers waiting to accept cases without retainer & say a third of the take. The policy of investigating any complaint from anyone ,anywhere in the World is absurd. To avoid practice risks in Ontario, CPSO stats are one bad complaint every 20 years, best plan to be a desk doctor, not seeing live clients eg Insurance, Pharmaceutics, Public Health, WSIB. or Administrating clinics. Had one patient who complained that I did not hang up her coat;!

    1. Good thoughts. There are better ways to do things, for sure.

      The trouble is that the regulator has become the creator-of-rules, not just a protector of the public. I understand why they felt the need to put clarity on boundaries and limits. But once they start trying to turn knowledge workers into technicians, there is no end to the number of rules that can be made. The whole approach is flawed. When our own college has decided to abandon the concept of self-regulation, we need to start over. Other places do it better.

  6. One of the main reasons for self regulation is the economy of dispute resolution. Can you imagine if every complaint went through the civic, provincial or federal court system? The legal system would be overwhelmed with these cases because of the huge gap in perspective between the legal and medical professions. The physician Regulatory body is supposed to eliminate this gap for a more efficient resolution of problems. Sadly, this sometimes leads to efficiently punishing Physicians because the physician regulators must be seen to defend the public. Together we can make it better.

  7. with you on this Shawn. let’s make changes. We have an entitled public, a ministry that wants us to stop spending money and a college that will hang us if we dont do everything that the patient wants and all the protocols that they demand. We are caught in the middle.
    It is time that the frivolous complaints are removed from the equation and that we get on with our jobs without fear of retribution from everyone.

    1. Well said, Pat: “We are caught in the middle.” I would add that we get caught in the middle just trying to provide for all the concrete medical needs…never mind the wants.

      Thanks!

  8. Hi Shawn, You can imagine how much I have to say, and fortunately you have said most of it very well as usual already. The only “self” in self-regulation in Ontario is the College. And who threw it ” in the dustbin of history”? Good Lord, the MOHLTC ( ! ) has tried to rescue conscience rights for physicians, denied by “our” College, by providing a 1-800 number. ( ! ) When you get to my stage of “what more can they do to you?” rise to the ethics and motivation that made you a physician. Peaceful protest. Can they have 10,000 people arrested at once? Revoke all our licences? Try calling 1-800- find-a-doctor then.

    1. Thanks Roger (you know who) 🙂

      Family docs, especially, work in fear of the college. It doesn’t seem to be the same for consultants, from my general impression. I get the sense that many specialists are in demand and they know it. Same thing for docs in remote areas. They feel less vulnerable because the need for their services is greater and there are fewer people who understand their world of care.

      1. There is a practical (but not good) reason for your observation. The College hires “specialists” as “Expert Witnesses” to denigrate their colleagues who are “only” GPs. These experts are mostly ignorant about the extraordinary value and skills of “Primary Care”. Read the previous issue of Dialogue on “The Epidemic of Unnecessary Care.” Recent conferences and articles on the matter say 46% of test and procedures are unnecessary; 87% of surveyed physicians cite fear of regulators as their reason; only 66% are attributed to patient requests, which the College naively claims can be dealt with by “discussing it with the patient.” To find specialists to attack other specialists they have to go out-of- province and cite U.S. Guidelines. When this is rightfully thrown out, in spite of “transparency”, you will not find it on the College website. Only “useful information” on “bad doctors” there.

      2. I wouldn’t say less vulnerable possibly more vulnerable because there are less colleagues that can support the care provided and defend you in front of the college.

  9. I was trying to think of where I had first heard the term “dustbin of history.” It sounded familiar, and it then occurred to me that some famous communist dictator said it. I looked up the quote, and it is actually by Leon Trotsky, the communist revolutionary who helped Lenin seize power in Russia in 1917. His Bolshevik faction of communists dominated the newly formed Congress of Soviets, when another faction, the Mensheviks, walked out.
    He said:

    “You are pitiful, isolated individuals! You are bankrupts. Your role is played out. Go where you belong from now on – into the dustbin of history!”

    While I don’t think Dr. Gerace had any intention of invoking the image of a long dead would-be communist dictator, the comment is nonetheless troubling. Trotsky was in the process of assuming absolute power, and consigning an unwanted political minority to a marginalized position.

    For the medical profession, who or what is being cast to the rubbish heap? Is it the process of regulation , or is it those who would attempt to constructively engage in the process? In totalitarian states, politics are much less important than ideology. In the case of the medical profession, regulation seems to be more and more ideologically driven.

    1. I didn’t know that Coryn. Thanks so much for sharing this!

      While I wonder whether the author knew the source of the original quote, it seems to fit with the general ethos of the whole discussion.

      Thanks again!

  10. Absolutely ! The College hates intelligent, thoughtful, well-read physicians who search for actual published evidence. The perfect telling Epilogue by our retiring ‘Leader’.
    Canada is being destroyed by the personal ideology of its Prime Minister, just as Ontario, its youth, health care and its physicians are being destroyed by the personal ideology of its Premier.
    Let us learn the lesson of history from the Mensheviks and NOT walk out, but stand up and fight for the truth and noble foundations of our profession.

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