From Club Governance to Stakeholder Regulation Part 1

‘Until the General Medical Council is composed of hard-working representatives of the suffering pubic, with doctors who live by private practice rigidly excluded except as assessors, we shall still be decimated by the vested interest of the private side of the profession in disease.’

Shaw (1957 Preface to The Doctor’s Dilemma)

In doing do it sets the scene for the subsequent discussion of relevant sociological literature in topic four.But one thing it could not do was completely resolve existing tensions within the profession between general practitioners and physicians and surgeons. General practitioners resented the increasing importance of hospitals, particularly the teaching hospital, but they also felt that some of their colleagues were engaged in ‘competitive undercutting, fee-splitting, canvassing for patients and other unethical practices’ (Titmus 1958: 172). The Act had led to the public being less clear about the various roles and relationships between the different elements of the profession. A doctor was a doctor and all that mattered was that there name was on the medical register. By the 1890s the problem of competition amongst doctors for patients had become so intense that it took the collective power of the British Medical Association – the professions trade union – the Royal Colleges and the GMC to advert a potentially ‘really ugly internecine feud’ (Gould 1985: 73). It was agreed that hospital specialists would only see patients referred to them by a general practitioner for a second opinion. This created a division of labour between general practitioner – the generalist – and hospital consultant – the specialist – which remains in place today. However, this was a small (but still important) victory for the general practitioners as they were still seen to at the bottom of the medical hierarchy. Despite being the equal of their physician and surgeon peers in the eyes of the law. The Royal College of Physicians and Surgeons were the most important examining bodies. Their members’ occupied key places within the teaching hospitals, universities and the GMC. It would not be until the middle of the twentieth century before general practitioners were granted their own Royal charter to create a college.

Medicine and the Establishment of the National Health Service

Aside from not resolving internal tensions between different elements of the profession and not resolving the economic insecurity faced by a large proportion of the doctors (and mostly general practitioners), the 1858 Medical Act also failed to create a formal monopoly over medical practice. It was possible to practice medicine but in doing so one must not to call oneself a registered medical practitioner (and therefore a qualified doctor). However, what the 1858 Act did do was create a formal monopoly for the registered medical practitioner in all public institutions and government medical services. This certainly placed the profession in a good position when in 1911 the state introduced the National Health Insurance Act to provide medical assistance to the working class and subsequently expanded this to include all of its citizens shortly after the Second World War. The establishment of the National Health Service (NHS) in 1948 promised universal free health care from cradle to grave (Klein 1983). Fulfilling this promise led to the state becoming more dependent up on the medical profession, which in turn gave up its economic independence from the state to secure its members future (although private practice was still allowed). By effectively placing doctors in charge of the NHS the state reinforced medicine’s right to possess clinical autonomy in the workplace as well as to self regulate its educational and disciplinary activities. Indeed, the wartime coalition government’s 1944 White Paper on the creation of a ‘national health service’ stated that ‘whatever the organization, the doctors taking part must remain free to direct their clinical knowledge and personal skill for the benefit of their patients in the way they feel best’ (Ministry of Health 1944: 26). Without a doubt, this was the golden age of medical power and autonomy. As Elston (1991: 67) notes, with the establishment of the NHS, medicine’s ‘freedom extended to include a considerable level of representation as of right on policy making bodies at all levels as well as freedom from managerial supervision over patient care’. In return for free healthcare not only did patients have to continue to accept that ‘doctor knows best’, the concordat between the profession and the state was itself renewed, with the state receiving covert clinical rationing in return for granting the profession control over the day to day allocation of clinical resources (Day and Klein, 1992). There were distinct advantages for the state in doing this. By institutionalising medical autonomy in the structure of the NHS, the state in principle deflected the possibility of direct public criticism of government in regards to public health matters. For with doctors in charge, NHS clinical decision making was now directly in the hands of a group of apparently politically disinterested experts who had the public’s best interests at heart. However, this golden age of medical power and autonomy was not going to last.

Changes in the GMC: Discipline, Education and Membership

By the end of the 1960′s the GMC had largely remained unchanged for over a hundred years. An empire had been lost, two world wars had come and gone, women had gained the right to vote and the NHS had been born. Yet the GMC remained largely untouched by the passage of time. Although the principle of medical regulation had continued to remain unchallenged, some relatively minor changes had been made along the way concerning the two main functions entwined with maintaining the medical register: overseeing the content and quality of medical education and disciplining errant doctors. For instance, the 1968 Medical Act replaced the then traditional phrase of ‘infamous conduct’ with ‘serious professional misconduct’. ‘Serious professional misconduct’ was felt to focus the GMC’s disciplinary procedures on matters relating to ethical probity, such as sexual relations with patients. ‘Infamous conduct’ was felt by many within the profession to be associated with their Victorian forefathers somewhat obsessive concern with the regulation of self-advertisement and competition between doctors (Parry and Parry, 1976). Although advertising was still seem to be an important issue, the regulation of competition between doctors for patients was by this time less of an issue given the vast majority were by this time directly employed by the state in the NHS.

In regards to medical education, a series of Acts progressively refined the purpose and content of medical education and, in principle at least, extended the GMCs’ powers in overseeing its quality (Stacey 1992). An Act in 1886 made it obligatory for new doctors to pass examinations in midwifery as well as medicine and surgery to gain access to the medical register. While the 1950 Act extended the period of university based basic medical education from five to six years by including what was called pre-registration year. A supplementary 1956 Act made this the direct responsibility of the Universities and GMC instead of teaching hospitals. Finally, the 1968 Act had formally established higher, specialist, hospital training. This was to be overseen by the Royal Colleges. It also made it clear that the purpose of basic medical education was not to produce ‘the finished article’, but to provide a basic grounding in medicine and prepare junior doctors for subsequent hospital based specialist training, before they finally moved onto higher vocational training in medicine, surgery or general practice. Changes in the focus of basic medical education, the addition of the pre-registration year alongside the introduction of more formal arrangements for later specialist training, were all necessary due to the rapidly expanding nature of medical knowledge and expertise. In short, changes in the organisation of medical education occurred side-by-side biomedicine’s increasing reliance upon new developing forms of medical technology. The topic will return to this issue again shortly.

In addition to these relatively small changes in regards to its disciplinary and educational responsibilities, the membership of the GMC had slightly changed since its inception in 1858. The 1886 Act had allowed five members of the GMC to be elected by the profession after many ‘rank and file’ doctors, especially general practitioners, made it clear that they felt the GMC was unrepresentative of the profession as a whole. By the mid-1940, and primarily in response to workload demands, the original twenty-four board members had increased to forty-two. For the first time one lay member was nominated by the Privy Council. The early critic of the medical profession George Bernard Shaw took the credit for this. Indeed, he had described the professions in general as ‘conspiracies against the laity’ in Act One of the Doctor’s Dilemma (Shaw 1957). Subsequently, the 1950 Act increased the size of the GMC to fifty and increased its lay membership to three. They were no female members until 1951, and only one female council member until 1971, despite there being 12,596 women on the medical register at this time (Stacey 1992). In short, by the start of the 1970s the GMC remained an elitist institution, largely controlled by men, and perceived by ‘rank and file’ members of the profession as being detached from the realities of everyday medical practice.

It was no longer a Victorian gentleman’s club as it had once been, but it was still an exclusive member’s only club.

Lighting the Blue Torch Paper: The Retention Fee

‘[Doctor] opposition to the GMC’s elitist composition was sparked off primarily by a GMC decision in 1969 to alter the basis of its fees. Until then a doctor, on being admitted to the GMC’s approved medical register, paid a life membership fee and could promptly forget about the existence of the GMC, as long as he behaved professionally.’

Moran and Wood (1993: 55)

As Moran and Wood note, the first challenge to the legitimacy of the GMC as a regulatory body came from within the profession. The fact that the council planned to introduce an annual fee for doctors to stay on the medical register ignited ‘the blue torch paper’. However, the GMC also had its own problems that deserve to be mentioned. In particular, it was increasingly clashing with the Royal Colleges as it came to recognise that rapid advances in biomedicine and medical technology meant that the largely ad hoc arrangements for specialist medical education needed to be reviewed. The related question of a doctor’s continued competence to practice after completing College membership exams was also becoming a real issue given the increasing rate of change in medical knowledge. The Royal Colleges did recognise this issue needed to be addressed. Indeed, in 1976 they sponsored an inquiry into doctors continued competence to practice. Perhaps unsurprisingly they concluded it was unnecessary to introduce periodic examinations to assess doctor continued competence (Ailment 1976). The GMC also did not consider it necessary at this stage for doctors to have to prove periodically their competence to retain their place on the medical register. Indeed, at this time the main source of tension between the Royal Colleges and the GMC was that the GMC felt that the medical register should be amended to include the completion of later specialist training in order to tighten up the quality of specialist medical education. This proposal would effectively place it in charge of all stages of medical education. This upset the Colleges as they felt they should retain sole control.

At the same time of this debate, the GMC had become concerned that its disciplinary procedures did not fully support doctors suffering from mental disorders or addiction to drugs or alcohol. It had no protocol for helping either the recovery or rehabilitation of such individuals. Additionally, it was under considerable financial pressures. It did not have the resources to manage a register containing far more doctors than their forefathers could ever have foreseen. Indeed, it had to cope with the registration and discipline of an influx of overseas doctors into the NHS due to an overall shortage of UK doctors (Irvine 2003). The fact that the GMC was a self-financing body, paid for by the medical profession at large, was an important element of the principle of medical self-regulation. However, it needed more money. As a statutory body, it had to have a government review to address this and its other concerns. In 1969 a Bill was placed before parliament, minus any discussion of the possibility of introducing a specialist register after lobbying from the Royal College of Physicians. At its centre was the proposal for an annual retention fee for doctors to stay on the medical register. For many of the ‘rank and file’ members of the profession, particularly general practitioners and junior doctors, this was the last straw. They were not represented at all on the GMC council. Why should they pay?

Articles complaining about the GMC’s proposals began to appear in the medical press and then national newspapers. The disagreement became so virulent it gained the attention of parliament. Stacey (1992: 34) notes, ‘[this] was the iconoclasm – the disputes got outside the ‘club’, indeed were taken there by defiant acts of some of the club members themselves.’ By the end of 1972, the state was faced with the very real possibility of NHS employees being unable to work because they had been removed from the medical register for no other reason than non-payment of an annual retention fee. It realised it had no option but to act. After discussions with the BMA, Royal Colleges and the GMC, it proposed a full inquiry into the organisation of the GMC. The subsequent Merrison Committee of Inquiry, chaired by Sir Alec Merrison, reported in 1975 and its recommendations informed the 1978 Medical Act.

The central issue which the government and the profession at large wanted resolving was member representation. The Merrison committee did not question the legitimacy of the principle of medical self-regulation. Indeed, Merrison fully endorsed it. He argued that ‘Although it is very little in the public eye, and then only on trivial occasions, the importance to the public of the part played by the GMC cannot be overestimated. The health of the nation will be founded on the cornerstone of the wise and responsible practice of medicine and that practice is in turn founded on the wise and responsible regulation of the profession’ Merrison (1975: 7). Consequently, the GMC remained ‘an example of a state-approved self-regulatory professional institution’ (Moran and Wood 1993: 56). Neither did Merrison view the issue of doctors periodically demonstrating their continued competence to practice, called variously recertification or relicensure (and in the last decade revalidation) as being part of his review.

Merrison’s main recommendations concerned the council’s membership, its disciplinary procedures and educational responsibilities. These led to the 1978 Act stating that the GMC’s responsibility for basic medical education should be extended to include the coordination of all stages of medical education (with the Royal Colleges still responsible for later specialist professional examinations of course) as well as promoting professional standards and ethics. The 1978 Act also gave the GMC greater discretion in dealing with complaints regarding doctors suffering from health issues (nominally mental health problems or alcohol and drug addictions). It was argued that identifying sick doctors and providing them with therapy and rehabilitation rather than punishment was advantageous to the public as well as the profession. The new health procedures were linked to the GMCs disciplinary procedures and had voluntary and compulsory elements. Colleagues and patients would refer doctors, but in theory, they could refer themselves. Finally, the annual retention fee was endorsed. In return, the ‘rank and file’ of the profession got what they wanted – representation. The Act enlarged the council to ninety-three members, fifty of whom were directly elected from ‘rank and file’ members of the profession. Of the remaining forty-three, twenty-one were appointed by the Universities, thirteen by the Royal Colleges and nine by the Privy Council; seven of whom were lay members when the new council first convened. Merrison had considered providing specific places on the council for junior doctors and women. However, this idea was rejected in favour of making sure members could directly elect the majority of council members. Consequently, women remained underrepresented on the GMC despite the recognition that more female council members were needed. Indeed, between 1976 and 1989 the female percentage of council members only rose from 6.5% (n=3) of the total number of members to 13.7% (n=14) despite the fact that 23% (38,318) of the total number of registered doctors (n= 163,708) were female by 1985 (Stacey 1992: 80).

The Rise of NHS Management and the Patient Revolt

The GMC was happy with the Merrison report and the resulting Medical Act. Why should it not be? After all, it recognised the legitimacy of medical authority and autonomy by endorsing the principle of professional self-regulation (Moran and Wood, 1993). Yet at the same time the state was backing the GMC it was moving towards introducing a key variable into the NHS which would from the middle of the 1980′s onwards present an increasingly significant challenge to doctor’s clinical freedom – general management (Harrison and Ahmed 2000).

So what had changed? As the topic noted earlier, on creation of the NHS the state and the medical profession entered into an agreement that was mutually beneficial. The problem was that the concordant between medicine and the state was a product of its time. During the ‘consensus politics’ era after the second world war the prevailing wisdom was ‘experts know best’. However, by the 1970s, times had changed and the public was gradually becoming less and less willing to accept the authority of experts without question. Furthermore, when the NHS had been founded there was broad cross-party agreement that the welfare state was necessary and that steady economic growth would ensure the progressive decline of poverty and the improvement of public health. But by the late 1960′s to early 1970s growing public expenditure was a very real issue, with both main political parties’ instigating reviews of public services, particularly welfare and the NHS (Larkin 1995). Certainly, the 1979 Conservative administration, led by Mrs Margaret Thatcher, wished to reduce public expenditure. Thatcherism held a firm ideological commitment to ‘rolling back the state’ and introducing free market forces in both the public and private spheres (Riddel 1989, Dean 1999). The 1979 Conservative administrations neo-liberal commitment to the discipline of the market and the power of consumer choice meant it perceived all forms of professional self-regulation (and medical autonomy in the NHS in particular) as being opposed to choice and competition. This led to a situation where though the state was publicly supporting doctor’s right to clinical freedom, it was also calling for NHS reforms to contain costs and improve efficiency. It is against this background that in 1983 the NHS Management Inquiry gave its recommendations. Roy Griffiths, who was the Managing Director of Sainsbury’s Supermarket Chain, chaired this inquiry. The Griffiths report as it subsequently became known led to the replacement of the traditional hospital administrator with general managers (later known as Chief executives) tasked with ensuring the efficient use of resources. Further NHS reforms initiated by Conservative administrations throughout the 1980s and early 1990s – such as Working with Patients (Department of Health 1989a) and the Patients Charter (Department of Health 1991) – would lead to subsequent challenges to ‘doctor power’ under the guise of improving efficiency and empowering patients (Gabe 1994).

Increasing public concern with the principle of medical self-regulation was an interwoven theme of NHS reform and the growth of the viewpoint of patient as consumer. Certainly, public suspicion of collegiate control of doctor’s discipline came to the foreground in the early 1980′s as the GMCs’ commitment to protecting patients’ interests was increasingly questioned in the media. In 1983, Professor Ian Kennedy gave his Reith Lectures called Unmasking Medicine (Kennedy 1983). Professor Kennedy criticised the GMC’s lack of openness and public accountability. He argued that its disciplinary procedures were not transparent and protected doctors instead of patients. He also called for measures to be introduced that would ensure the continued competence of doctors. Meanwhile, programmes such as Dispatches, That’s Life, World in Action and File on Four, repeatedly highlighted cases of medical malpractice and blamed the GMC for failing to ensure the doctors they investigated were trustworthy and competent. Perhaps the most important case was that of Alfie Winn. For it highlighted for many critical commentators just how out of touch with the changing needs of the public the GMC really was.

The GMC and the Case of Alfie Winn

Alfie, an eight year old boy, died after a delay in diagnosis. His parents had called their GP, a Dr Archer, after Alfie developed a temperature and started to vomit. "He arrived three hours later and asked the boy to open his mouth. The boy seemed comatose and his mother said: ‘He can’t hear you’. The doctor replied ‘If he can’t be bothered to open his bloody mouth, I shall not bloody well look at him.’ He prescribed an antibiotic. Two hours later the family called an ambulance and Alfie was taken to hospital but died hours later of meningitis’ (Robinson 1988: 5). Subsequently Alfie’s family made a formal complaint about Dr Archer and the case came before the GMC. However, the GMC dismissed the case because Dr Archer’s rudeness and unwillingness to refer Alfie for hospital treatment may have been below the standard of care required by a doctor, but did not constitute "serious professional misconduct". Unsurprisingly this caused a public outcry. Alfie’s case gained further media attention because he was something of a local celebrity, due to being the mascot for West Ham United football club. The GMC was actually doing what it had always done: putting its members’ interests before those of the public. The problem was that increased public concern with medical malpractice had meant that the GMC was not only having to cope with an increase in disciplinary proceedings, but was also reviewing more cases like Alfie’s which were directly concerned with doctor’s clinical performance (Allsop and Mulcahy 1996). However, ‘[though GMC was] now prepared to look at more cases bordering on the clinical, errors in practice did not rank as seriously in the [disciplinary] committee’s mind as some other offences (advertising for example)’ (Stacey 1992: 183). This was because by looking at a doctor’s clinical performance the GMC was effectively breaking the golden rule of the principle of clinical freedom – only the doctor in the clinical situation at hand can decide what treatment is necessary. As Stacey (1992) notes, following Larson (1977), medicine’s collective belief in the need for doctors to posses clinical autonomy, due to the specialist nature of medical expertise, means it has developed an occupational culture which in technical terms is ‘cognitively exclusive’. This and the previous topic have already discussed how such exclusivity can lead to the development of elitism in relationships with outsiders and the establishment of two key internal ‘club rules’. First, only club members can legitimately decide if a cause of action undertaken by another club member is appropriate. Second, club members should not punish other members for their actions towards ‘outsiders’, except in the most serious of instances. Primarily because it is expected that mistakes will happen and indeed ‘could happen to any of us given the esoteric nature of our specialist knowledge’. This was what had happened in Alfie’s case. The only problem was that the

GMC made the mistake of presuming the general public was still culturally bound to accept medical authority without question (this in itself perhaps shows just how out of touch it was by this time). Indeed, Mrs Jean Robinson, who was a lay member of the GMC in the 1980s, published a topic on the GMC in 1988 in which she discussed Alfie. In her view, his case illustrated how it ‘is the way doctors behave after a mistake has been made which causes most criticism and really brings the profession into disrepute’ (Robinson 1988: 35).

The Spearing Bill

Robinson was not alone in believing this. Alfie’s family were supported by their local Member of Parliament, Nigel Spearing, who in 1984 proposed in parliament a two tier GMC system of "serious professional misconduct" and a lesser charge of "unacceptable medical conduct" to cover the increasingly central issue of doctors continued competence to practice. This proposal was given extra weight by the fact that Dr Archer was subsequently referred to the GMC again and identified as suffering from health issues. However, as Robinson (1988) notes, the GMC reacted angrily to Spearing’s proposal because it was made by somebody outside of the medical club. It used its political connections to hold up the proposal and eventually countered it by instigating an internal review that proposed the introduction of new disciplinary procedures relating to professional performance. Importantly, the GMC now recognised it had to act because a ‘notion of misconduct which marginalised the issue of clinical treatment of patients was just not sustainable in a democracy, especially in a democracy where patients were becoming daily more informed, better educated and more self-confident’ (Moran 1999: 107). Finally, but reluctantly and slowly, the rule of medical club government was giving way to the political realities of the twentieth century. The GMC proposed that it would seek statutory powers so it could suspend doctors from the medical register until they updated their skills. It would not be until 1995 before the Professional Performance Procedures Bill was enacted by Parliament. This gave the GMC statutory powers to monitor underperforming doctors. The GMC was afraid to act without full agreement from the BMA and the Royal Colleges, who in typical fashion dragged their heels on the matter. In summary, it had taken over a decade, but by the early 1990s NHS reforms and the patient revolt had led the GMC to recognise that it needed to look at doctor’s continued clinical competence. It could no longer be assumed that doctors would remain competent throughout their career without periodically updating their knowledge and skills.

They can be no doubt then that the rapidly changing and expanding nature of medical knowledge meant the elite institutions of the medical profession involved in medical education, such as the Royal Colleges and the GMC, came to recognise by the end of the 1980s that they had to look at the central issue of doctor’s continued competence to practice. They were coming under pressure to reform because of a substantial rise in medical litigation in the NHS (Allsop and Mulcahy 1996). Additionally, public trust in doctors was no longer a cultural given. Patients were increasingly unwilling to accept a passive role in medical care and health matters (Moran 1999). This move by the GMC towards looking at doctors continued competence to practice was progressive. Nevertheless, throughout the 1980′s and into the early 1990s it remained an essentially reactive institution, providing little effective leadership to the profession at large. Indeed, it left this up to the BMA and the Royal Colleges as it historically had done. It was heavily dependent upon building consensus within the profession when deciding policy. It was representing doctors, not regulating them as it should have been, and consequently was perceived by many critical commentators to be failing as a regulatory body in its statutory duty to protect the general public (Gladstone 2000). As Slater (2000: 7) notes, ‘if the profession does not fulfil its part of the bargain, then the state is obliged to reform medical regulation in order to restore public confidence’. This is exactly what was going to happen next.

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