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A growing number of complaints against older doctors has prompted the Medical Board of Australia to announce today that it’s reviewing how doctors aged 70 or older are regulated. Two new options are on the table.
The first would require doctors over 70 to undergo a detailed health assessment to determine their current and future “fitness to practise” in their particular area of medicine.
The second would require only general health checks for doctors over 70.
A third option acknowledges existing rules requiring doctors to maintain their health and competence. As part of their professional code of conduct, doctors must seek independent medical and psychological care to prevent harming themselves and their patients. So, this third option would maintain the status quo.
Haven’t we moved on from set retirement ages?
It might be surprising that stricter oversight of older doctors’ performance is proposed now. Critics of mandatory retirement ages in other fields – for judges, for instance – have long questioned whether these rules are “still valid in a modern society”.
However, unlike judges, doctors are already required to renew their registration annually to practise. This allows the Medical Board of Australia not only to access sound data about the prevalence and activity of older practitioners, but to assess their eligibility regularly and to conduct performance assessments if and when they are needed.
What has prompted these proposals?
This latest proposal identifies several emerging concerns about older doctors. These are grounded in external research about the effect of age on doctors’ competence as well as the regulator’s internal data showing surges of complaints about older doctors in recent years.
Studies of medical competence in ageing doctors show variable results. However, the Medical Board of Australia’s consultation document emphasises studies of neurocognitive loss. It explains how physical and cognitive impairment can lead to poor record-keeping, improper prescribing, as well as disruptive behaviour.
The other issue is the number of patient complaints against older doctors. These “notifications” have surged in recent years, as have the number of disciplinary actions against older doctors.
In 2022–2023, the Medical Board of Australia took disciplinary action against older doctors about 1.7 times more often than for doctors under 70.
In 2023, notifications against doctors over 70 were 81% higher than for the under 70s. In that year, patients sent 485 notifications to the Medical Board of Australia about older doctors – up from 189 in 2015.
While older doctors make up only about 5.3% of the doctor workforce in Australia (less than 1% over 80), this only makes the high numbers of complaints more starkly disproportionate.
It’s for these reasons that the Medical Board of Australia has determined it should take further regulatory action to safeguard the health of patients.
So what distinguishes the two new proposed options?
The “fitness to practise” assessment option would entail a rigorous assessment of doctors over 70 based on their specialisation. It would be required every three years after the age of 70 and every year after 80.
Surgeons, for example, would be assessed by an independent occupational physician for dexterity, sight and the ability to give clinical instructions.
Importantly, the results of these assessments would usually be confidential between the assessor and the doctor. Only doctors who were found to pose a substantial risk to the public, which was not being managed, would be obliged to report their health condition to the Medical Board of Australia.
The second option would be a more general health check not linked to the doctor’s specific role. It would occur at the same intervals as the “fitness to practise” assessment. However, its purpose would be merely to promote good health-care decision-making among health practitioners. There would be no general obligation on a doctor to report the results to the Medical Board of Australia.
In practice, both of these proposals appear to allow doctors to manage their own general health confidentially.
The law tends to prioritise patient safety
All state versions of the legal regime regulating doctors, known as the National Accreditation and Registration Scheme, include a “paramountcy” provision. That provision basically says patient safety is paramount and trumps all other considerations.
As with legal regimes regulating childcare, health practitioner regulation prioritises the health and safety of the person receiving the care over the rights of the licensed professional.
Complicating this further, is the fact that a longstanding principle of health practitioner regulation has been that doctors should not be “punished” for errors in practice.
All of this means that reforms of this nature can be difficult to introduce and that the balance between patient safety and professional entitlements must be handled with care.
Could these proposals amount to age discrimination?
It is premature to analyse the legal implications of these proposals. So it’s difficult to say how these proposals interact with Commonwealth age- and other anti-discrimination laws.
For instance, one complication is that the federal age discrimination statute includes an exemption to allow “qualifying bodies” such as the Medical Board of Australia to discriminate against older professionals who are “unable to carry out the inherent requirements of the profession, trade or occupation because of his or her age”.
In broader terms, a licence to practise medicine is often compared to a licence to drive or pilot an aircraft. Despite claims of discrimination, New South Wales law requires older drivers to undergo a medical assessment every year; and similar requirements affect older pilots and air traffic controllers.
Where to from here?
When changes are proposed to health practitioner regulation, there is typically much media attention followed by a consultation and behind-the-scenes negotiation process. This issue is no different.
How will doctors respond to the proposed changes? It’s too soon to say. If the proposals are implemented, it’s possible some older doctors might retire rather than undergo these mandatory health assessments. Some may argue that encouraging more older doctors to retire is precisely the point of these proposals. However, others have suggested this would only exacerbate shortages in the health-care workforce.
The proposals are open for public comment until October 4.
Christopher Rudge is a law lecturer at University of Sydney.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
The statements or opinions expressed in this article reflect the views of the authors and do not necessarily represent the official policy of the AMA, the MJA or InSight+ unless so stated.
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I do not agree any further regulations by the medical board towards licencing to practise for the doctors in Australia just because of their age. Australia has one of the higest longivity in the world. There is a requirement of having normal health status, completing mandatory professional competence as well as strict driving licence requirement in place. Entire health care service is increasingly commercialised and burdened with numerous rules and regulations, thus causing the srvice unnecessarily complex , fragementary, expensive at expence of the time required to treat the patient. I retired at eighty five after getting my full driving licence and I have to pass yet another drving test next year to be able to retain my full driving licence and I am happy with this requirement. A practsing doctor must necessarly be competent to practise regarless of the age. Ref : Bhattacharyya R. Surgical competence-a surgeon’s pperspective. Surgical News 2022;.23:24-25
Nurses, Allied health providers, paramedics, etc—there is a long list of healthcare providers who also continue to work after they reach 70, not just medical practitioners. Any rules considered must also be applied to anyone who is employed by the public to to act in the public trust which include all AHPRA registered practitioners, as well as judges, politicians, any public employees etc. Otherwise it is discriminatory against doctors and certainly falls under age discrimination. No ifs ands or buts about that one! I am curious about what percentage of complaints are made annually about politicians and their capability to administer health policy for the benefit of the Australian people. This would apply equally to them.
It could be worse, pilots and more junior police officers have compulsory retirement ages. All of society now is competing in the Victim Olympics. I’m 55. If, in 15 years, I have to have a health check I’ll take it as a compliment.
Others have raised the question of evidence. The following might work. Randomise doctors into two groups. Have one group checked and one group not checked and see if the outcomes between the two groups differ. I suppose that solution lacks social validity. Maybe, have some specialties checked and others not checked and see what happens?
About the examination of older drivers. It seems to me that some of the accidents of older drivers are because of loss of proprioception of their right leg. They press the accelerator when they think they are pressing the brake (and lack the cognitive speed to realise their mistake.) Is that tested?
There is good evidence that cognitive flexibility declines with age. However, since “seventy is the new sixty”, it’s difficult to know when a screening test should cut in, and what type of review might detect subtle decline (short of a full neurocognitive assessment). While concurrent medical issues such as diabetes might contribute to, or hasten, cognitive decline, a general health assessment may have a low yield in detecting cognitive fitness.
Having said that, I would like to see Judges assessed in some sort of Fitness to Practice programme. Their decisions also affect human lives.
I was forced to retire at the age of 71 years by AHPRA. I was told that ” I WAS TOO COMPASSIONATE”. Basically I refused to follow poorly conceived guidelines and treated each patient individually. I am advised that AHPRA are proceeding against most Doctors who reach 70 years. Medical Defence proved completely useless, and I was advised to undergo training which was clearly substandard.
I feel it would be wise to test the proposed protocols for assessing performance using carefully considered criteria and establishing some benchmarks across several age groups. The number of patient complaints should not be a standalone criterion for fitness to practice.
Careful analysis of any studies should be made with examination of the methodology and statistical testing being appropriate.
More difficult will be setting appropriate benchmarks once scientifically validated data are obtained across a variety of performance indicators and age groups.
Concurrently, it must be remembered that systems of support, including team training, available algorithms, check lists, (think of the WHO provided Time out procedures) in fact all human factors, are applicable to the delivery of excellent medical care. An enormous amount of work has already been done to make the patient’s journey through theatre a safe one. It may be more productive to audit hospital team performance rather than individual medical practitioners.
In summary, if we are to introduce new policy, let it be based on good science.
There are many complex issues raised by this suggestion. Patient safety being the principal issue will always hold sway, but the population is ageing too, and their comorbidités also increasing. A careful eye must be kept on medical workforce numbers to ensure those in their clinical prime are not overworked to the point of burnout. Many practitioners may be expected to want to work reduced hours for longer. CME imposts are already heavy in time and costly, and becoming ever more so. Are the regulators saying that despite fulfilling college CME requirements, older doctors perform sub-optimally? If so AHPRA, is implying its discriminators are more appropriate that those of the specialist Colleges.
What is the nature of these increasing complaints? Are some of these complaints merely a matter of ‘cultural differences’ between the patient and the doctor? Do they centre on genuine questions of incompetence? Are there conspicuous incidents involving bad patient outcomes? Is an ageing generation of doctors so far from the technological coalface or so disengaged with social media as to be no longer able to be trusted with the care of the sick? But if it is doctors’ thought processes, decision-making and actions that are under examination, what scope is there to question the philosophical assumptions, decision-making and actions of the regulators?
Just a few observations:
Older doctors having more complaints about them is one thing but is there evidence that this could have been avoided if something had been detected on a medical examination. NSW has medicals for older drivers and Victoria does not but both jurisdictions have similar accident rates for older drivers.
AHPRA seems to be trying to reassure everyone that this is not a fitness to practice test just an opportunity to talk to your own doctor. This seems at odds with the request for comments on cognitive behaviour tests. If a cognitive behaviour test is required that clearly makes this a fines to practice situation. This issue then might be what is the sensitivity and specificity of the test being applied.
A fitness to practice assessment or any assessment required by a third party (eg AHPRA) cannot be covered by MediCare.
approaching 70years of age.
I suspect you will loose 5% of your workforce overnight when these requirements for assessment are implemented.
I have seen excellent drs over 70 and questionable drs over 70. Of course safety comes first.
Hence my suggestion – make EVERY worker in a safety area undergo a health/cognition /safety check with 70 yoa.
– make it government organised ( as they are the requesting party )- THEY organise the occupational physician; THEY pay for the assessment. ( good luck with that ….)
ps – given that AHPRA is there for pt safety I would expect every AHPRA employee to undergo the same ….
ps – It would be interesting to know how many of the complaints were serious safety complaints – one of the things which gets more tempting with aging is to tell demanding unreasonable pts the truth about themselves and their demands – does not make you popular with these pts and nowadays people complain about every little thing they dont like.
Oh please give us a break. Doctors of all the professions are safe in general. They are the cream of society and obtained the title through lot of hard work and dedication . They often consult with their colleagues when in doubt and spend many hours a year in ongoing CPD.
Why do they not apply similar rules to others in society?
Please ask if any politicians and hospital administrators and the members of AHPRA are willing to undergo any age based tests? Ask the Judges who keep releasing the juvenile offenders back into society despite their serious crimes only to reoffend 24-48 hours later?
Please give the medical profession a break. Stephen Hawkins was physically impaired but into one asked him to undergo an assessment. I know many doctors who work part time and can still teach well and impart their wisdom and make a difference. Keep your biases to yourselves and if you are too bored and have too much time try some gardening and bee keeping . It helps relieve boredom and stress and straightens the thoughts and is also good for health and gives one a better perspective on life instead of coming up with myopic and narrow minded ideas.