Elsevier

Social Science & Medicine

Volume 73, Issue 10, November 2011, Pages 1452-1459
Social Science & Medicine

Why is UK medicine no longer a self-regulating profession? The role of scandals involving “bad apple” doctors

https://doi.org/10.1016/j.socscimed.2011.08.031Get rights and content

Abstract

This article identifies the role played by a series of medical scandals in the UK, occurring from the mid-1990s onwards, in ending a collegial model of self-regulation of the medical profession that had endured for 150 years. The state’s original motive in endorsing professional self-regulation was to resolve the principal–agent problem inherent in the doctor–patient relationship. The profession, in return for its self-regulating privileges, undertook to act as a reliable guarantor for the competence and conduct of each of its members. Though sufficient to ensure that most doctors were “good”, the collegial model adopted by the profession left it fatally vulnerable to the problem of “bad apples”: those unwilling, incapable or indifferent to delivering on their professional commitments and who betrayed the trust of both patients and peers. Weak administrative systems in the NHS failed to compensate for the defects of the collegium in controlling these individuals. The scandals both provoked and legitimised erosion of the profession’s self-regulatory power. Though its vulnerability to bad apples had been present since the founding of the 19th century profession, it was the convergence of social and political conditions at a particular historical moment that transformed the scandals into an unstoppable imperative for reform. Huge public anger, the voice permitted to a coalition of critics, shifts in social attitudes, the opportunity presented for imposing standards for accountability, and the increasing ascendancy of pro-interventionist managerialist and political agendas from the early 1990s onwards were all implicated in the response made to scandals and the shape the reforms took. Scandals need to be understood not as simple determinants of change, but as one performative element in a constellation of socially contingent forces and contexts. The new rebalancing of the “countervailing powers” has dislodged the profession as the senior partner in the regulation of doctors, but may introduce new risks.

Highlights

► The era of collegial self-regulation for the UK medical profession has ended after 150 years. ► The role of scandal in provoking and legitimising reform is important but under-examined. ► We show that the profession harboured a structural susceptibility to transgression by individuals since its foundation. ► A contingent set of social and political forces and contexts both created the opportunity for reform and shaped the outcomes of reform.

Introduction

In this essay, we describe and explain how the social contract between doctors and the state in the UK came to be rewritten, focusing in particular on the role played by scandals involving “bad apple” doctors. We present our analysis in two parts. First, we describe the collegial model of self-regulation of medicine that endured for 150 years. We identify its recent erosion and replacement with a distinctively “modern” regulatory framework, and show that these reforms followed a series of widely publicised reports of exceptionally poor performance and misconduct by doctors. We explore how weaknesses inherent in the model of collegial self-regulation adopted by the profession created the conditions for transgressions by doctors to be tolerated. Second, we note that this structural weakness had been present from the founding of the profession, but propose that it was the convergence of social and political conditions at a particular historical moment that created an unstoppable imperative for reform. In characterising the role of scandal, we propose that scandals provide opportunity for reform, but that the outcome of scandal is contingent.

The social contract between state, public and profession in the UK can be most conveniently dated to the 1858 Medical Act, which established the General Medical Council (GMC). The Act empowered the Council to maintain a list (or ‘register’) of recognised doctors, and thus control entry into the profession. Crucially, also, the Act granted the medical profession self-regulatory powers, in Ogus’s (2000:590) sense of “deliberate delegation of the state’s law-making powers to an agency, the membership of which wholly or mainly comprises representatives of the firms or individuals whose activities are being regulated.” The self-regulating collegial model created by the Act both enabled and obliged the medical profession to set the standards governing the work of its members, establish mechanisms to ensure compliance with those standards, and take action against defaulters.

Sociologists are fond of presenting the story of the professionalisation of medicine, and the state’s grant of self-regulatory powers, as the outcome of strategic manoeuvring by a canny occupational group bent on upward social mobility through market closure and exclusion of competitors (Waddington, 1984). Neo-liberal critiques of the professions have persistently characterised credentialing and licensing as faintly veiled attempts to collect monopoly rents (Leicht & Lyman, 2006). The story is somewhat more complicated, however. Privileges were not granted to the profession without a quid pro quo; the interest of the state was in consumer protection (Loudon, 1986), or, put another way, in addressing the principal–agent problem. Such problems are found wherever one person (the principal) must rely on another (the agent) without being able to supervise directly or to judge independently the agent’s actions.

In any principal–agent relationship, the principal must tolerate some uncertainty about whether the agent will act in her interests (Besley & Ghatak, 2005). The desires and goals of the principal and agent may conflict; the agent may be incompetent or engage in misconduct; and what, why and how competently the agent is doing what she does may remain mysterious to the principal. One way of thinking about the risks inherent in such a relationship is to build upon Tonkiss and Passey’s (1999) helpful heuristic distinction between trust - which pertains to relationships not conditioned by formal controls – and confidence – which refers to those secured by formal regulations. This distinction explains how, even though she has no means of enforcing the deal, the person who asks her friend to look after her dog while she is on holiday feels secure with this arrangement: she trusts her friend. That same person when securing a reliable supply of electricity for her house may want a legally enforceable means of ensuring that the supplier will not exploit or disappoint her. The person’s confidence is entirely dependent on formal controls and legalistic mechanisms, devoid of emotional or personal properties. Trust and confidence vary not only as a basis for relationships, but also to the degree that they impose “transaction costs” - the costs of supervising and controlling the work of the agent to prevent default. Trust-based systems typically impose lower transaction costs, since they do not involve contracts or other instruments to secure the cooperation of the agent.

In the doctor–patient relationship, the vulnerability of the principal (the patient) is amplified. The focus of the relationship is the highly consequential, personal and intimate matter of health, but much of the doctor’s expertise, conduct and performance (as with most areas of specialised expertise) is typically beyond the capacity of the “ordinary” person to assess or monitor (Misztal, 1996). This, then, is a relationship rife with risks for the principal. The state’s delegation of responsibility for managing these risks to the profession was based on four key assumptions. First, the interests of the public and the profession were assumed to be sufficiently well aligned to avert the risk of shirking either by individual doctors or the collectivity of doctors (Roberts, 2009). Second, non-professionals were assumed to be incapable of understanding or judging the specialised expertise of doctors (Merrison, 1975). Third, physicians were assumed to be especially virtuous and trustworthy because of the values expressed in their codes of conduct (Merrison, 1975). Finally, professionals were assumed to be willing to take action when individual members fell short (Freidson, 1973). The social contract would therefore, in principle, allow patients to engage with doctors on the basis both of trust-like features (any member of the profession would have the same regard for patients’ interests as a trusted friend) and on the basis of a confidence-engendering regime of regulatory oversight and redress (any failures by the doctor would be detected and punished by the organised corporate body of the profession).

For the profession, then, the price of occupational closure and self-regulation was fulfilment of onerous fiduciary responsibilities both to the public at large and to every patient. This regulatory bargain appeared, at least to the mid-Victorian mind, to provide a neat solution to the principal–agent problem, but it required crucially that the profession act as a reliable guarantor for the performance and conduct of each of its members.

The GMC’s organisational and governance structures for the 150 years following its foundation continued (albeit with some modifications) to reflect a collegial, self-regulating model – by doctors for doctors. Following a series of reforms to the UK regulatory framework, the medical profession can now no longer properly be understood as self-regulating. Powers of setting standards, monitoring practice, and managing defaults have been relocated to outside the profession. Changes include the introduction of a previously unknown level of state-backed supervision and powers of intervention in the form of a super-regulator, the Council for Healthcare Regulatory Excellence, which was established in 2003. The long tradition of doctors both occupying a majority of positions on the GMC as well as controlling the membership of the Council ended in 2009: members are now appointed independently and the Council has parity of lay and registrant (doctor) members. The standard of proof in “fitness to practice” cases has switched from the high bar used to establish criminal guilt (beyond reasonable doubt) to the lower one used to determine civil liability (balance of probabilities). A wide range of new procedures and policies for acting on concerns about doctors and responding to complaints has been established, and all doctors are now required to have their license to practise renewed through a process of ‘revalidation’. In sum, a new era of managerial control over professional norms, values and practices has emerged, with the state and NHS institutions now being much more decisively involved in control both of the profession and its individual members (Waring, Dixon-Woods, & Yeung 2010).

These changes represent significant erosion of the collegial self-regulatory model. They suggest a significant rebalancing of what Donald Light (2010) terms the “countervailing powers” in the healthcare arena, who have different interests, cultures and goals that may be in tension with one another. Key parties, or countervailing powers, in the social contract for medicine included the profession, the lay public, the state, and the National Health Service (NHS). The reforms mean that the profession has now, after a long period of dominance, been displaced into a more subordinate position. In effect, the profession has lost sole custody of the claim of virtue. Our concern in this paper is to explore the role of scandals involving doctors in the rewriting of the social contract. As an essay attempting an overview of a large and complex field, this paper does not attempt a formal empirical analysis of media reports or official documents, but these are adduced where appropriate in support of our analysis.

Section snippets

The scandals

Scandal, as Lull and Hinerman define it, occurs “when private acts that disgrace or offend the idealised, dominant morality of a social community are made public and narrativized by the media, producing a range of effects from ideological and cultural retrenchment to disruption and change” (1997:3). We shall deepen our analysis of scandal later in the paper, but for the moment will note the empirical fact that the UK saw a series of cases involving doctors that met this definition, occurring

The collegium

A little noted feature of these cases of misconduct is that they were not only failures in the duty of care owed to the public, they were also failures of these physicians to fulfil their responsibilities towards their peers. There is little evidence that most doctors during the time of the scandals were “bad”: the Chief Medical Officer (2006:vi) commented that “There are around 130,000 registered doctors in active practice [..] The vast majority practise medicine of very high quality”. The

The collapse of self-regulation and the role of scandal

Our analysis thus far points to a structural vulnerability of the collegial model to bad apples that had been there since the middle of the 19th century. Problem doctors were by no means new in mid-1990s Britain. Scandals involving doctors, as the archives of the British Medical Journal demonstrate, were a depressingly familiar phenomenon from the very founding of the profession. Many scandals over time had the same content as the later scandals, including doctors (such as John Bodkin Adams in

Conclusions

The regulative bargain between the medical profession and state in the UK has been fundamentally altered. The profession remains the intermediary social institution by which patients are assured that doctors will act as their fiduciary agents. However, the extent to which the system relies on trust-like relations has now fundamentally changed to one where formal, confidence-engendering regulatory policies and procedures seek to control, monitor, and enforce standards relating to the performance

Acknowledgements

Mary Dixon-Woods’ work on regulating doctors was funded by ESRC Public Services Programme grant RES-153-27-0009. Charles Bosk’s work on patient safety is supported by a Health Investigator Award from the Robert Wood Johnson Foundation and VA HSRD AwardSHP 08-178. We thank the reviewers of this manuscript, especially referee 3, for exceptionally helpful comments that helped us improve this article.

References (52)

  • A. Adut

    A theory of scandal: Victorians, homosexuality, and the fall of Oscar Wilde

    American Journal of Sociology

    (2005)
  • T. Besley et al.

    Competition and incentives with motivated agents

    The American Economic Review

    (2005)
  • H. Bradby et al.

    ‘Sexy docs’ and ‘busty blondes’: press coverage of sexual misconduct cases brought before the General Medical Council

    Sociology of Health and Illness

    (1995)
  • Chief Medical Officer

    Good doctors, safer patients

    (2006)
  • Chi - Commission for Health Improvement

    Investigation into issues arising from the case of the Loughborough GP Peter Green

    (2001)
  • A.M. Colman

    Game theory and its applications in the social and biological sciences

    (1995)
  • Department of Health

    Trust, assurance and safety

    (2007)
  • M. Dixon-Woods et al.

    Regulation and the social licence for medical research

    Medicine, Health Care, and Philosophy

    (2008)
  • M.A. Elston

    Remaking a trustworthy medical profession in twenty-first-century Britain

  • W. Felps et al.

    How, when, and why bad apples spoil the barrel: negative group members and dysfunctional groups

    Research in Organizational Behaviour

    (2006)
  • E. Freidson

    Profession of medicine

    (1973)
  • E. Freidson et al.

    Processes of control in a company of equals

    Social Problems

    (1963)
  • W.J. Goode

    The protection of the inept

    American Sociological Review

    (1967)
  • A. Grubb et al.

    Principles of medical law

    (2004)
  • S. Hilgartner et al.

    The rise and fall of social problems: a public arenas model

    American Journal of Sociology

    (1988)
  • C. Hood

    A public management for all seasons?

    Public Administration

    (1991)
  • C. Hood et al.

    The government of risk

    (2004)
  • D. Irvine

    The doctors’ tale

    (2003)
  • D. Irvine

    A short history of the General Medical Council

    Medical Education

    (2006)
  • I. Kennedy

    Learning from Bristol: The report of the public inquiry into children’s heart surgery at the Bristol Royal Infirmary 1984–1995

    (2001)
  • R. Klein

    The state and the profession: the politics of the double bed

    British Medical Journal

    (1990)
  • B. Knight

    Legal aspects of medical practice

    (1992)
  • E. Lazega

    Rule enforcement among peers: a lateral control regime

    Organization Studies

    (2000)
  • K. Leicht et al.

    Markets, institutions and the crisis of professional practice

  • D.W. Light

    Health-care professions, markets, and countervailing powers

  • I. Loudon

    Medical care and the general practitioner, 1750–1850

    (1986)
  • Cited by (0)

    View full text