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Disputing Doctors: the Socio-Legal Dynamics of Complaints about Medical Care
  1. G Neale
  1. Clinical Safety Research Unit, Imperial College, St Mary’s Hospital, London W2 1NY, UK;

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    L Mulcahy. Suffolk, UK: Open University Press. 2003. £65.00 (hardback), £19.99 (softback). 152 pp. ISBN 0 335 21245 X (hardback), 0 335 21244 1 (softback)

    This book provides an important analysis of what happens when trust between doctors and patients breaks down. It is well referenced and Professor Mulcahy’s arguments are amply supported by her own detailed researches.

    Before the Second World War there were few overt complaints against doctors. Poor outcome of serious illness was commonplace and people understood little of disease despite the insights offered by G B Shaw in “The Doctors’ Dilemma”. Doctors were treated with reverence—so much so that two doctors who successfully warded off what appeared to have been an indefensible claim were applauded by the vicar of East Dulwich as having had a wrong redressed: “The great sting of that wrong was that it was ungenerous and ungrateful; circumstances that ought to have elicited gratitude were turned into grounds for accusation and attack”.1

    In 1947 the NHS was established with no structured procedure for complaints. Professor Mulcahy describes the subsequent developments starting with the Department of Health guidelines of 1966 that allowed complaints about doctors to be handled almost exclusively by doctors. This process was altered little by either the formal legalistic review of the Davies Committee (1973) or by the initiative of the MP Michael McNair Wilson who, after a bad experience in hospital, sought to develop a patients’ charter. He made a dramatic speech in Parliament (“Whose life? Whose body? Who suffers?”), but the resultant Hospital Complaints Act (1985) had little effect.

    It took the impetus of the Citizens’ Charter (1991) and pressure from both the charity Action for Victims of Medical Accidents and the Association of Community Health Councils to obtain an independent inquiry into complaints procedures (Wilson 1994). The resulting government directions abolished a separate clinical complaints procedure designed and managed by doctors and emphasised the primacy of local resolution. For the first time there was a national structure for complaints. Hospital managers believed that the system worked well and most staff thought that it was fair and unbiased, albeit stressful for participants.

    But external bodies, especially the Public Law Project headed by Professor Mulcahy, showed widespread public dissatisfaction. Mulcahy reported a perception of lack of impartiality and visibility (especially the control of access to independent review by non-executive directors of the Trust). Moreover, she found little evidence to show that information gained from settlements and reviews were being used to improve practice as originally envisaged. The Department of Health decided that further reform was necessary and it is now about to place responsibility for independent review with the newly established Commission for Healthcare Audit and Inspection.2

    Professor Mulcahy puts this history into the context of achieving justice and managing conflict in contemporary society. She discusses how legal regulation and professional accountability are regarded as oppressive forces in the doctor-patient relationship. She regards the principle of self-regulation as convenient for the state as well as for the profession, and shows how patients may not be protected by managers. Meanwhile, the medical profession struggles to maintain the principle of self-regulation without overriding the needs of society.3

    Professor Mulcahy also discusses the relationship between medical mishaps, complaints and negligence claims. She states that doctors have definitional power (only a doctor can define preventability); political power in public debate (iatrogenic injury may be part of the price of progress); situational power (they can control the visibility of error and its effects and may be able to determine the initial response of an injured patient); and medicolegal power through the Bolam test that endorses medical autonomy.

    The wider social changes brought about by the rise in consumerism and political forces that demand improved conditions and rights for the general population are seen as additional forces. A medical mishap is all the worse because it is set against hopeful expectations. Inevitably it leads to anger and distress.4 Mulcahy emphasises the potential value of mediation in resolving a patient’s needs for an opportunity to air a grievance, to learn what happened, and to receive an assurance that steps have been taken to try to avoid a recurrence.

    In later chapters Professor Mulcahy sensitively discusses the reactions of doctors to complaints. She provides evidence, largely from her own observations, to show that she understands the emotional devastation that may be wrought by medical mishaps, complaints, and medicolegal claims. But she also shows how doctors use various devices to externalise blame, often depending on “scientific logic” and specialist expertise to stifle managerial input. She documents the rise in managerial power within the NHS that stemmed largely from the Griffiths report (1983).5 This spoke of the need for managers and doctors to work together and for doctors to play a role in management. In practice, the medical profession rejected this opportunity and strove to preserve its traditional networks of power. Moreover, NHS trusts have adopted different styles of complaints’ resolution with some managers adopting a confrontational approach describing themselves as watchdogs for consumers whereas others take a minimalist role and act as junior partners. Mulcahy states that the minimalist approach is especially true of managers with a clinical background who justify their actions as the price to be paid for organisational harmony.

    In the closing chapter Professor Mulcahy argues that further steps need to be taken to protect the needs and interests of service users. Up to a point she accepts the need for government to seek to work with doctors and not against them, but believes that society is still dogged by a system of medical education that leaves young doctors unprepared to deal with accountability although, in so doing, she does not mention recent significant changes in the educational process.6

    Undoubtedly further change is needed. Although there are few firm data, it would seem that the complaints manager in an NHS hospital trust receives several hundred clinical complaints a year with all the attendant costs. Patients4 and doctors7 need to come to terms with the risks of medical practice. Professor Mulcahy’s thought provoking book should be read in conjunction with “Errors, medicine and the law8 in which there is greater emphasis on finding better ways of reducing dispute between doctors and patients.

    L Mulcahy. Suffolk, UK: Open University Press. 2003. £65.00 (hardback), £19.99 (softback). 152 pp. ISBN 0 335 21245 X (hardback), 0 335 21244 1 (softback)