Discussion

This study found that 43% of doctors disciplined by tribunals in Australia and New Zealand in the decade to 2010 were consequently removed from practice. The removal rate varied widely across different types of misconduct, peaking in cases in which doctors were found to have engaged in sexual relationships with patients. The removal rate also varied by underlying explanations tribunals saw for the misconduct. Most notably, doctors judged to have acted wilfully, aware that their actions breached professional expectations, faced very high odds of license revocation or suspension.

The case outcomes in our sample fall between those reported by Morrison and Wickersham2 for the Medical Board of California (removal in 34% of cases, restrictions on practice in 45% and non-restrictive sanctions in 21%) and Clay and Conaster's study of the State Medical Board of Ohio (removal in 64% of cases).4 To the extent it is possible to compare, the distribution of cases across misconduct types in our study looks broadly similar to distributions reported in other studies. For example, combining the two sexual misconduct categories used in our study, the proportion of cases that resulted in removal (70%) lies in the middle of the range (60–80%) identified in previous US studies.1 ,4 ,5 The removal rates among cases involving breach of conditions and illegal and unethical prescribing are also similar to rates detected for broadly analogous types of misconduct in previous studies.2 ,5 However, our ability to compare results with previous studies is constrained by the fact that the typologies we used to describe the nature of the misconduct at issue are more nuanced and detailed than those used in previous studies. In particular, we disaggregated the misconduct into dimensions describing the behaviour both in a simple descriptive sense and in terms of its perceived underlying cause.

Finding near zero tolerance for sexual relationships was not unexpected. However, it is not immediately clear why having a sexual relationship with a patient is much more strongly associated with removal than other forms of inappropriate sexual conduct towards patients. Closer analysis of the sexual relationship cases suggests that tribunals tend to be dismissive of the idea that patient consent has any weight, given the power imbalance between the parties. Rather, the ongoing and typically clandestine nature of sexual relationships, often combined with a lack of insight and remorse, elevates the seriousness of this conduct from a public protection perspective. By contrast, in cases involving sexual misconduct that occurs outside a relationship, the misconduct is often an isolated incident, which may be judged to have occurred due to misunderstandings or one-off indiscretions.

Our findings in relation to misconduct type show that failings in relation to delivery of medical care, such as mistreatment and diagnosis, result in removal from practice much less frequently than does misconduct involving personal failings, such as inappropriate conduct towards patients, unprofessional personal conduct and non-adherence to practice conditions already imposed by the board. One plausible explanation for the divergence is that tribunals are more likely to opt for removal when dealing with incidents indicative of unsatisfactory character than they are when dealing with incidents that reveal substandard care. If removal decisions are influenced by the tribunal's views of the feasibility of rehabilitation, this makes sense. Tribunals and boards have at their disposal a range of interventions to address deficiencies in core medical competencies, including retraining programmes and practice conditions, and progress achieved via such interventions is generally measurable. Thus, the feasibility of intervention and the perceived potential for rehabilitation are likely to make penalties short of removal seem appealing. By contrast, dysfunctional behaviours and clear signs of bad character may be perceived as relatively untreatable.

The results from our analysis of explanations for misconduct reinforce the plausibility of this general explanation for the main study findings. Willful wrongdoing, incompetence and issues in a doctor's personal life were all associated with high removal rates; whereas removal rates were much lower when the misconduct at issue was judged to stem from problems in the work environment or insufficient knowledge. In sum, tribunals appear inclined to look behind the labels used in the charges brought before them to evaluate the rehabilitative potential of the doctor concerned. Research into professional misconduct must therefore do the same if it is to reach the aspects of clinicians' behaviour that drive regulators' deepest public-safety concerns and shape their calculus around sanctions.

Our study had several limitations. As with any content analysis of decisions in an adversarial legal system,12 the data accessible through determinations were necessarily constrained, both by the information parties chose to bring to tribunals and by how tribunals chose to express their written findings. Moreover, interpretations and coding of this information, particularly the explanations for misconduct variable, introduced another level of subjectivity, although the excellent inter-reliability of our reviews provides reassurance on this front.

The conceptualisation of professional misconduct introduced in this study offers a new way of understanding how some bodies that oversee the conduct of health professionals pursue their protective function—in particular, when and why they choose to deploy the most potent sanction at their disposal. Our study suggests that standard descriptors of disciplinary caseloads (ie, misconduct type) are of some use in understanding how tribunals act. But descriptors that focus on underlying causes of the behaviour and longer-term risks to public safety may offer clearer insights into regulators' decision making. This account of health professional regulation should be tested elsewhere, particularly in countries with very similar systems of professional regulation, such as the USA, Canada and the UK.