the twilight saga… responding to an aging registrant population moderator:jordan glick, weirfoulds...

The Twilight Saga…Responding to an Aging Registrant PopulationMODERATOR: Jordan Glick, WeirFoulds LLP

SPEAKERS: Dr. Melissa Frumin, Brigham and Women’s HospitalRaj Anand, WeirFoulds LLPVicki White, College of Physicians and Surgeons of Ontario

Roadmap• An Aging Registrant Population - Introduction

• Medical Views on Cognitive Performancein Aging Professionals– by Dr. Melissa Frumin

• The Impact of Human Rights Legislation– by Raj Anand

• CPSO’s Quality Assurance Program– by Vicki White

• Case Specific Discussions

• Practical Tips for Regulators

An Aging Workforce• When are you planning on Retiring?

A. Before 60B. 60-65C. 65-70D. 70-75E. Over 75

Average Retirement AgeDefined as the age at which the labour

force participation rate drops below 50%

United States:– 1965 - 55– 1993 - 57– 2010 – 59– 2014 - 63

An Aging Registrant Population - Introduction

• People are working longer in life for a number of reasons:– Longer and healthier

lives– More educated (less

physically demanding jobs)

– 2008 economic impact on pension funds

– Insufficient retirement savings generally

An Aging Registrant Population – Introduction

(cont’d)• Meanwhile, workplace demands are

growing:– Longer Hours– Rapidly changing technologies – Increasingly complex and specialized practices

• The public relies heavily on regulators to ensure that registrants discharge their professional obligations safely

An Aging Registrant Population – Introduction

(cont’d)• In most studies, older age correlates

with declining abilities:– Age related decline found in doctors

(decreased knowledge, worse patient outcomes, less adherence to standards)

– Trade related injuries more severe for older tradespeople (carpenters, iron workers, machine operators, etc.)

Current Regulatory Approach

• A complaint is made against an 82 year old registrant at your regulatory body for a breach in standards that raises public safety concerns. This matter would currently be handled by:A. Enforcement / Disciplinary

InvestigationB. Competence InquiryC. Fitness to Practice D. Quality Assurance Program

Questions for the Audience• At what age should you be assessed

for competency (i.e. for declining abilities)?

A. 55B. 60C. 65D. 70E. Never

Case Study #1- The Surgeon

• A 75-year-old ophthalmologist performing routine cataracts surgery places the (intraocular lens) implant in front of the pupil instead of behind, causing increased pressure and swelling in the patient.

• The ophthalmologist is subsequently the subject of, among other things, cognitive testing and peer review. There is evidence of cognitive decline, but not necessarily physical decline.

Case Study #2 – The Grade 1 Teacher

• A 75-year-old grade 5 teacher is noted by a classroom assistant to be consistently making mistakes with identifying cities on a map in a geography class.

• The teacher is subsequently the subject of, among other things, cognitive testing and peer review. There is evidence of cognitive decline.

Normal Aging – The Good• What is well-preserved/stable in

normal aging– Procedural memory - memory of how to

perform tasks, e.g. walking, talking, riding a bike

– Semantic memory – knowledge that is acquired about the external world over a life time

– Skills, ability, and knowledge that are overlearned, well-practiced, and familiar

Normal Aging – The Bad• What declines with age, 70 and older

– Episodic memory – ability to recall autobiographical events

– Working memory – manipulation of information that is held in conscious awareness

– Executive function – "administrative" control to organize and regulate multiple types of information and, therefore, effecting behaviors.

– Processing speed

Aging – The Ugly – Dementias

• Loss of abstract thinking

• Disorientation• Lack of initiative• Language problems

• Misplacing items• Mood swings• Personality

changes• Poor judgment

http://www.ucsfhealth.org/conditions/alzheimers_disease/

http://www.cumc.columbia.edu/dept/sergievsky/pdfs/agingandmemoryinhumans.pdf

What to do with theolder worker

• It is a dilemma

Synonyms for Dilemma• Deadlock, impasse, quagmire,

stalemate, standoff• Knot, problem• Bind, difficulty, fix, hole, jam, pickle,

pinch, plight, predicament, spot

How do we evaluateolder workers?

• (Older meaning 10-15 years older than me!) Are they:

• Revered Elders - some with limitations– Potentially more complicated, requires

individual assessment

How do we evaluateolder workers? (cont’d)

• “Dead Wood” - let’s just get rid of them– rules-based decision – age cut off,

standardized exam– like a driving test - pass/fail

Risk• Health and safety – doctors, pilots,

nurses, engineers, architects, police, firefighters

• Compassionate society – how are we to benefit from their wisdom?

My Perspective• Who am I responsible to?• Physician in a large academic

medical center – patients, students, trainees

• Institutional review boards/ethical review board – 5,000 human research protocols under review every year

• Research and investigators

How do we currently dealwith older physicians?

• Poorly. We are reactive.• Costs are lives, limbs, money and I

would add a poorly-trained next generation of health care workers

Dilemmas• One person setting• Very difficult to evaluate a one

person setting – physicians, dentists, podiatrists, independent visiting nurse.

• Fall back upon a standardized exam and review of medical records.

• Patient complaints.

Institution• Credentialing and re-credentialing

process-peer reviewed• More people looking at you• A colleague signs off on my fitness to

practice every 2 years

Institution (cont’d)• Personal relationship can interfere

with the greater good.• Institutional allegiance these days is

mixed• Patient complaints

Medical School• Older physicians hang on for a long

time– I am treating depression in a 90-year old

physician who teaches at a local medical school

• Teaching can also include advice/ supervision

• Physician’s identity, especially for men, can sometimes be their entire identity

Potential Solutions• Maintenance of Certification with

Exam, CMEs, review of records, Specialty Boards

• Board of Registration Medicine– In the US, each state has their own

system for regulating the medical profession. Fill out an application, answer questions, 100 CME units that have to be documented

Potential Solutions (cont’d)• Extensive evaluations

– UCSD – cost benefit – time away from work

– actual cost of evaluation

• Who gets chosen?

Potential Solutions (cont’d)• One consequence of new technology,

especially a new medical records system, is that many older physicians, 80s and above who do not want to take it on!

Potential Solutions (cont’d)• Have a process where older

physicians are seen as Revered Elders– can teach– participate in med school/hospital

activities– have an academic appointment– access to library

Melissa Frumin, M.D., M.S.MFRUMIN@PARTNERS.ORG

• Neuropsychiatrist, Brigham and Women's Hospital

• Ethical Review Board/Institutional Review Board, Mass General and Brigham and Women's Hospitals

• Assistant Professor of Psychiatry, Harvard Medical School

Age-Triggered QAPs – Human Rights Implications

• Many jurisdictions, including Canadian provinces and the federal government, have abolished mandatory retirement

• Perhaps as a result, ageism has become more widespread in Canada and in North American society generally

• Ageism is a socially constructed way of thinking about older persons– Refers primarily to attitudinal barriers– Based on negative stereotypes about aging– Also based on a tendency to structure society as though

everyone is young

Age-Triggered QAPs – Human Rights Implications

(cont’d)• Ageism is a more complex issue in

professional self-regulation

• A regulator must balance an aging individual’s desire to continue practicing with its public protection mandate– latter includes well-founded concerns that the

public’s health and safety may be jeopardized by permitting a professional to practice in an unrestricted fashion

Age-Triggered QAPs – Human Rights Implications

(cont’d)• Canadian human rights laws protect against

discrimination in services, employment, and membership in self-governing professions, among other social areas

• Professional self-regulatory bodies in Ontario are therefore covered

• Human rights protections enjoy quasi-constitutional status– Courts give them a broad and liberal interpretation,

rather than a narrow “black letter of the law” interpretation

• Overall purpose is to foster respect, dignity and inclusion for all members of society

Age-Triggered QAPs – Human Rights Implications

(cont’d)• Unequal treatment because of

age is prohibited where it relates to one’s membership in a professional regulator

• When “age” was capped at 65, the definition had the effect of authorizing regulators to conduct age-triggered peer assessments for professionals 65 years of age or older

Age-Triggered QAPs – Human Rights Implications

(cont’d)• Now, age-triggered peer or practice

assessments are prima facie discriminatory and contrary to the law

• No special exemption exists that authorizes discrimination in professional self-regulation for age-related reasons (contrast with insurance or employment situations, where direct discrimination is permitted for reasons of age in certain justifiable circumstances)

Age-Triggered QAPs – Human Rights Implications

(cont’d)• A self-regulatory body cannot impose direct or

indirect age-based requirements, rules, qualifications or factors with respect to membership in a profession, unless it can provide rational, credible and bona fide reasons (BFRs) for doing so

• In other words, a discriminatory rule must be adopted for a valid reason

• In the professional self-regulatory context, the most important BFR will be public health and safety

• Such reasons should be based on objective

Age-Triggered QAPs – Human Rights Implications

(cont’d)• A regulator’s justification for treating registrants

differently because of age should:– be based on objective, and not impressionistic,

expert evidence • Expert evidence can canvass both the physical and

mental / cognitive demands of practice in aging professions (see, by analogy, similar evidence adduced in the suppression firefighting context in Espey v. London (City), 2008 HRTO 412)

– be implemented following an investigation of alternative approaches that achieve the same result, but do not have a discriminatory effect

Age-Triggered QAPs – Human Rights Implications

(cont’d)• Most important, such requirements

must be :– reasonably necessary to accomplish the

goal of protecting the public, in the sense that not having the requirements in place would create undue hardship to the regulator in terms of public health and safety

Raj AnandWeirFoulds LLP

4100 - 66 Wellington Street WestToronto, ON M5K 1B7

(416) 947-5091ranand@weirfoulds.com

College of Physicians and Surgeons of Ontario

• Provincial equivalent to State Medical Board– (Sort of)

• Broader mandate– Complaints/Investigations/Discipline– Quality Management Division

• Registration• Quality Assurance Program

Ontario• Population 13

million

• 30,000 physicians (approximately)

Peer Assessment Program:A Brief History

• 1977 CPSO approved Peer Assessment Pilot

• Pilot in ‘78-79– to identify physicians practising at an

unacceptable level– to designate methods of correcting the

deficiencies– to ensure that these methods are

effectiveMcAuley RG, Paul WM et al, CAN MED ASSOC J 1990; 143 (I 1)

Peer Assessment History• Program began in 1981• Data from first 5 years

– 923 physicians assessed– 663 (72%) GP’s or FP’s

Results Based on Age (1981–86)

VariableNumber assesse

d

No. (%) with grossly deficient records,

unsatisfactory care or both 

Age group    

< 50 275 24(9)50 – 74 324 51(16)≥ 75 63 22(35)Total 662 97 (15)

Risks to Regulator• Clear evidence that at least some

cognitive abilities decline with age • High risk group• If we wait for a random peer

assessment there can be significant declines in the interim

Peer Assessment: Introduction of Age-Targeted

Assessment• Introduction of peer assessment for

all physicians at age 70– in 1995 expanded to also assess at five-

year increments thereafter

Cognitive assessment vs. Practice assessment

• Power to require cognitive assessment new

• Currently, require practice assessment

Peer Assessment Currently• An educational program• Provides feedback on performance• Occasionally finds problems• Currently:

– 450 trained assessors– approximately 1,700 assessments

annually

• Random and targeted selection

Powers of Assessment• Ask questions re: practice• Inspect records/charts• Require physician to examine

simulated patients• Require cognitive assessment• Observe physician in practice

• Pre-visit questionnaire

• Patient records review using a structured evaluation toolkit

• Physician interview with feedback

Half-day practice

visit

• QA Committee reviews to determine opportunities for practice improvement

Report sent to College

Peer Assessment: Process

Peer Assessment Outcomes• Three Categories of Assessment

– Category 1 = Satisfactory assessment– Category 2 = Need feedback or

clarification from physician (for clarification, often documentation issues only)

– Category 3 = Interview with Quality Assurance Committee (QAC) when significant documentation concerns or care concerns; higher level assessment

2013 QA Assessment Outcomes

Satisfactory Assessment

Reassessment Interview

Randomly Selected Physicians

91% 7% 2%

Age 70 Physicians

81% 12% 6%

Age 70+ Physicians

79% 11% 10%

Powers after Assessment• Reassessment• Impose terms, conditions or

limitations on practice• Require participation in education

and remediation program• Refer for investigation

CPSO Complaints 2009# MDs < 69 #

complaints#

complaints/MD

22902 1453 .06

# MDs > 70

1456 152 .104

Aging Physician• Analytic processing declines• Managing novel, conflicting and

complex patient situations becomes more difficult

• Increased reliance on experience; less tendency to assess critically novel, conflicting information

• Poorer performance on recertification examinations

Systematic Review: The Relationship Between Clinical Experience and Quality

of Health Care

“Of 62 published studies that measured physician knowledge or assessed quality of care and described time since medical school graduation or age, more than half suggested that physician performance declined over time for all outcomes measured.”

(Choudry, Fletcher & Soumeraiann Intern Med. 2005;142:260-273)

Observations for Peer/PREP• Compared to their younger

colleagues, physicians 70 and older:– More frequently have serious record-

keeping deficiencies– More frequently have care concerns

Observations about Complaints and physician age – committee

decisions• Compared to younger peers,

physicians > 70 who have a complaint that requires a committee decision are more likely to…– …be referred to a discipline committee– …sign an undertaking to restrict their

practice

Hallmarks of a Good Age-Targeted Assessment Program• Consistency

– Tools for assessors – assessor selection (recruitment), assessor guidelines, report writing

– Elements of assessment• History and physical exam• Peer assessment (charts plus interview)• Observations of co-workers• Cognitive assessment

– Tools for decision makers – guide decisions that flow from assessment

Hallmarks of a Good Age-Targeted Assessment Program (cont’d)

• Transparency– Publicly available policy – preferably on

web– Set out what will happen in assessment,

when, and what will happen next– Explain important details

• Who pays, how long will it take, who can they talk to

• What happens to the information gathered

Vicki WhiteCo-Director, Legal Office

(416) 967-2600 ext. 433

vwhite@cpso.on.ca

College of Physicians and Surgeons of OntarioQUALITY PROFESSIONALS | HEALTHY SYSTEM | PUBLIC TRUST

Case Study #1- The Surgeon

• A 75-year-old ophthalmologist performing routine cataracts surgery places the (intraocular lens) implant in front of the pupil instead of behind, causing increased pressure and swelling in the patient.

• The ophthalmologist is subsequently the subject of, among other things, cognitive testing and peer review. There is evidence of cognitive decline, but not necessarily physical decline.

Case Study #1- The Surgeon

• A 75-year-old ophthalmologist performing routine cataracts surgery places the (intraocular lens) implant in front of the pupil instead of behind, causing increased pressure and swelling in the patient.

• The ophthalmologist is subsequently the subject of, among other things, cognitive testing and peer review. There is evidence of cognitive decline, but not necessarily physical decline.

QUESTIONS AND ANSWERS

MODERATOR: Jordan Glick, WeirFoulds LLP

SPEAKERS: Dr. Melissa Frumin, Brigham and Women’s Hospital

Raj Anand, WeirFoulds LLP

Vicki White, College of Physicians and Surgeons of

Ontario