Regulating fit and proper people: accentuate the positive?

I attended the first day of the first International Legal Regulators Conference yesterday.  There was a very interesting point made by Andy Friedman on the way professions regulate ethical entry.  He focused on the typical ‘fit and proper person’ tests much in the news because of James Murdoch (and see here for an excellent piece in the FT (£) by Andrew Hill).  Andy Friedman’s point as that most regulators focus on objective evidence of poor professionalism.  So, for example, the Solicitors’ Conduct Rules focus on:

  • particular types of criminal offences (especially dishonesty and other serious offences) including caution and warnings;
  • other evidence of dishonesty;
  • evidence of discrimination towards others or abuse of positions of trust;
  • plagiarism or cheating at University;
  • previous or ongoing disciplinary problems (I once got the slipper for eating my sandwiches outside, but I don’t think this counts);  and,
  • evidence of an inability to manage ones finances .

No one really knows whether these tests work, but Andy was able to point out there may be a more interesting -but more subjective -way of thinking about the problem for which evidence is available.  The study he referred to can be read here.

Medical students records (“applications for admission, course grades, evaluation narratives, scores from licensing examinations, administrative correspondence, and the dean’s letter of recommendation to a residency program” were examined and “negative excerpts about professional behavior were culled” from these.  They were coded for severity and frequency.  These were then compared with those students subsequent disciplinary record.

Other demographic  and attainment variables were included and through multivariate analysis eight types of unprofessional behavior were examined to see if they predicted the risk of disciplinary action.  The findings included:

“Evidence indicates that physicians who have been in practice for more than 20 years are at increased risk for disciplinary action….

“Most physicians who were disciplined committed multiple violations… [and]

“….had a slightly lower mean undergraduate science GPA than did the control physicians

“…Disciplined physicians were roughly twice as likely as control physicians not to have passed at least one course on the first attempt in both the preclinical and clinical years of medical school.

Twice as high a proportion of disciplined physicians as of control physicians demonstrated unprofessional behavior in medical school…    …. In unadjusted analyses, disciplined physicians were more likely than control physicians to display the following types of unprofessional behavior while in medical school: irresponsibility, diminished capacity for self-improvement, poor initiative, impaired relationships with students, residents, and faculty, impaired relationships with nurses, and unprofessional behavior associated with being anxious, insecure, or nervous.

“The multivariate analysis revealed three variables with regard to medical school that independently predicted disciplinary action. Unprofessional behavior was associated with an increase, by a factor of three, in the risk of subsequent disciplinary action, and it accounted for the largest population attributable risk (26 percent)…    ….Low MCAT scores and low grades in the first two years of medical school were also significant predictors, with a population attributable risk of disciplinary action of 1 percent and 7 percent, respectively.”

What kinds of thing made up ‘unprofessional behaviour’? Examples included: “unreliable attendance at clinic and not following up on activities related to patient care. …failure to accept constructive criticism, argumentativeness, and display of a poor attitude. Poor initiative was characterized by a lack of motivation or enthusiasm or by passivity.”

Overall, “physicians who were disciplined by state medical-licensing boards were three times as likely to have displayed unprofessional behavior in medical school than were control students.”  The study suggests that the results support the idea that Higher Education should include professionalism as a core competency.  It is difficult to disagree.  Students should learn, and learn early, the importance of respectful behaviour; proper interaction with colleagues; the need to cultivate self-improvement and so on.  And of course most teachers would encourage such practices.  More controversially might the study also provide a basis for arguing that such things should be part of the assessment cycle of students and neophyte professionals?  Clearly there is a point at which the process will become self-defeating and nor will  ethical surveillance work.  The models predictions are almost certainly not strong enough to suggest this kind of assessment could act as a ‘test’ of future ethicality.  Nor does the study show that teaching, recognising and rewarding more positive behaviour will prevent disciplinary hearings later on.

Equally it is a reminder that we need to develop approaches for recognising and rewarding ethical behaviour within education, professional training and –perhaps most importantly – professional practice.  More basic behaviours and habits may indicate or build us as  ethical individuals.  Rather than simply focusing on not doing what we should not do, we need to think also about what it is we do do.  We may need to focus on emphasising the positive more than we focus on defining the negative.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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One Response to Regulating fit and proper people: accentuate the positive?

  1. Philip Plowden says:

    My recollection is that there’s been US research which shows that one of the best indicators of future disciplinary issues for medics is to ask not the professors or the fellow students at the college, but to speak to administrative staff. Presumably it is in their interactions with people who they do not see as their peers that future unethical doctors show their true colours. I think that this pre-dates the paper you refer to (and so is not simply a garbled version of it) but I don’t have a citation.

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