Medical Self-Regulation

Crisis and Change

Mark Davies

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781351918732
• Topic: Medicine
• Subtopic: Law Theory & Practice

Self-regulation constitutes an important aspect of the regulatory and oversight process governing professionals. This book focuses directly on medical self-regulation in the context of both the wider regulatory framework and that of other regulatory models. Through a critical consideration of recent events, including high-profile and controversial cases, it is demonstrated that the self-regulatory process has failed and that only fundamental restructuring and a radical change in attitudes on the part of members of the profession can repair the damage. Attention is also given to the recent changes, current proposals for change and to alternative regulatory models. Medical Self-Regulation will be of international interest, appealing to policy makers, as well as students and practitioners in the fields of medicine, medical law and sociology and professional regulation.

Part I
Crisis

In the opening chapters of this book I consider the crisis which has confronted medical self-regulation in the United Kingdom in recent years. In particular, the role of the General Medical Council and, in general terms, the extent to which it has adequately performed this role.

Chapter 1
The Background to Medical Self-Regulation

Introduction

In recent years the medical profession has come under intense scrutiny as a result of a number of scandals in both hospital medicine and general practice. These range from the unnecessary deaths of children at the Bristol Royal Infirmary, the improper retention of organs at Alder Hey, to the unlawful killing of over 200 patients by Harold Shipman. Clifford Ayling was imprisoned in 2000 for abusing female patients over a period of at least seven years, during which time he had been dismissed by a number of employers without action being taken against his registration. In addition to these high profile cases, over a four-year period at least seven GPs were reported to have been jailed for sexually assaulting patients.¹ The high profile cases have resulted in inquiries and reports, and the government and profession have responded by reviewing and changing aspects of the regulatory process. However, these cases are likely to be the tip of the iceberg. A former President of the GMC, Sir Donald Irvine has suggested that in excess of 11,000 doctors may be unfit to practise, 5 per cent of the total number of doctors on the medical register. Reasons include failing to keep up to date or other manifestations of incompetence, ill-health and deliberate wrongdoing. The Chief Medical Officer, Sir Liam Donaldson, said in 2001 that among hospital doctors the figure could be 6 per cent, while the Royal College of General Practitioners has put it at 15 per cent of GPs. With respect to this latter figure, at least 3 million people in Britain could have a sub-standard GP.² Doctors in the United Kingdom have increasingly been subject to myriad forms of regulation. These include regulation as part of their employment (for the majority of doctors this will be within the National Health Service); civil action in negligence; criminal prosecution and ‘self’-regulation by the General Medical Council. All but the GMC are limited in their scope. It has been relatively easy for a doctor to escape sanction in the employment context by either moving on before disciplinary action could be taken, or by being ‘eased out’ by the employer by way of voluntary severance to avoid expensive and often protracted disciplinary proceedings. Civil claims depend on the claimant being able to access the resources necessary to bring a claim. The latter are also predominantly compensatory and, because damages will usually be paid by an insurer or the doctor’s employer, have little or no direct disciplinary effect. Criminal prosecutions against doctors will arise rarely and only in relatively extreme cases. This leaves the GMC as the only body which can remove a doctor’s right to practise irrespective of his or her employment situation. The GMC is the only body which has responsibility for doctors from the stage of initial training through to retirement and beyond. It is the only body which can deal with doctors across a significant range of misconduct types – from relatively minor infractions on the one hand to the most serious criminal matters on the other. Unlike civil actions, the penalties imposed by the GMC apply directly against the doctor. In short, the GMC is absolutely central to the regulation of doctors.

In light of this importance, I consider the role of the GMC in both its historical and current context. My core argument is that the GMC has failed to perform the role expected of it in numerous and serious respects. In the first part of this book I consider the importance of medical self-regulation, including the historical development of the GMC’s role. The second part consists of case studies used to illustrate the failings of the GMC. The third part considers recent reforms, other proposals for change and draws conclusions for the future.

Contextual and Definitional Points

The GMC does have to operate within budgetary constraints and its powers are largely governed by a statutory framework. Both of these limitations may account for some of the failings identified in this book. However, the GMC should not be permitted to use these factors to more than a limited degree in its defence. As an influential body, the GMC has had the opportunity over many years, even decades, to seek to increase its statutory powers and to address areas of regulatory weakness. Until very recently it has been relatively inactive in this regard. Similarly, with respect to its funding for important investigatory and other regulatory tasks, the GMC appears to have been more or less content with the status quo. The Council is funded by the medical profession and during the period under discussion in this book has been dominated by a majority medical membership. In these circumstances, it is hardly surprising that the GMC has not sought significant extra funding from doctors for the purpose of imposing a more rigorous and possibly more intrusive regulatory regime on these same doctors.

Central to the thesis of this book is the argument that medical self-regulation has experienced a lengthy period of crisis. The word ‘crisis’ was chosen as the most descriptive shorthand for recent events in medical self-regulation. ‘An unstable period; a crucial stage or turning point’³; ‘a vitally important or decision stage; a state of affairs in which change for better or worse is imminent’.⁴ As will be discussed in this book, all of these definitions aptly describe the recent history of medical self-regulation.

Professions, Power and Regulation

Professions such as medicine involve the provision of services which are of high importance to clients and require high levels of expertise and judgement by the professional. The client is frequently unable to accurately assess the quality of service. External models of regulation, it is often argued, are unsuited to many issues arising within the field of regulating professionals. This is because the discretion much professional judgement entails is beyond the understanding of those outside of the profession, and is usually undertaken away from the visible aspects of professional practice. Self-regulation seeks to address these difficulties by having the expertise of others in the profession on hand, and by seeking to guarantee the quality and integrity of those entering and remaining in the profession. To achieve this, the state strikes a bargain with the profession, whereby the profession is granted a near monopoly over the provision of its services, and in return it provides rules of conduct and associated regulatory processes: ‘Professions strike a bargain with society in which trust, autonomy from lay control, protection from lay competition, substantial remuneration and high status are exchanged for individual and collective self-control, designed to protect the interests of both clients and the public at large.’⁵

Maintaining quality of professional practice is therefore an important element in resisting external control. State-granted autonomy, a near monopoly of service provision and the right to control education, entry and to regulate members of the profession gives the profession a dominant position.⁶ In return, registration as a member of the profession should ensure both competence and appropriate standards of behaviour. Thus, credat emptor rather than caveat emptor should govern the professional–client relationship.⁷

Regulations imposed from outside may result in the alienation of the regulated. In this environment regulation may become inefficient and even unworkable. A significant advantage of professional self-regulation is the greater acceptability by the regulated, being controlled by ‘one of us’ rather than outsiders, who do not understand what it is like in the front line of professional practice. It has also been suggested that membership of a self-regulating profession is likely to enhance the sense of worth and from there enhance the standard of their work.⁸

In the 1970s, the Merrison Committee recognized the contractual nature of the relationship between profession and public in the context of self-regulation. Parliament was identified as the body charged with negotiating this contract on behalf of the public. The Committee warned of the need for the ‘contract’ to adapt to changing social circumstances.⁹ It is of note that, once the general statutory structure is in place, Parliament historically has largely left the detail of the self-regulatory contract to the profession itself.

Durkheim identified professional ethics as a means of asserting moral standards in an industrial world, where the deregulation of society through the impact of individualism was leading to moral decline.¹⁰ A core characteristic of professional power is the privilege the profession possesses to define both the content of its knowledge and the educated access to it.¹¹ Having largely defined the boundaries of their own knowledge base, this was subsequently institutionalized and taught by a ‘professional school’.¹² In addition to legitimate distance between professional expertise and lay knowledge, the profession may also seek to ‘mystify’ this knowledge, adding further to lay uncertainty to the further advantage of professional power.¹³ In return for monopoly power, the profession undertakes to use its expert knowledge to pursue the public good. Traditional models of professionalism therefore combined elements of what the profession expected from society – high status, generous rewards, restraints on competition and autonomy – in return for which the profession promised, inter alia, competence, an ethic of service and public protection.¹⁴

An important element of this public good is the assurance from the profession that its members will uphold the highest standards of conduct and use the power they command over the public responsibly. Regulation, and in particular self-regulation, of the profession is central to this concept and the means of maintaining public trust in the fact that the profession is upholding its side of the bargain. As Abel put it:

…a profession is differentiated from other occupations by the privilege of self-governance…A governing body…represents a profession and is formally recognised as doing so, it has powers of control and discipline over its members. A profession is given a measure of self-regulation so that it may require its members to observe higher standards than could be successfully imposed from without.¹⁵

In terms of the application of self-regulation, dominant modes are self-assessment by each practitioner or assessment by other members of the profession. One unfortunate result of this is that practitioners may be motivated to be more concerned with the way in which their colleagues view them than the impression given to the public.¹⁶ In the modern professional context, this has become less of a concern for clients of professional groups such as solicitors, who operate in a market environment, but remains of significant concern with regard to doctors practising within the monopoly environment of the NHS.

Profess...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Table of Cases and Legislation
• List of Abbreviations
• Preface
• Dedication
• Part 1: Crisis
• Part 2: Cases
• Part 3: Change
• Bibliography
• Index