The Kennedy Report
For many, the potent image of children’s gravestones made out of flowers being laid outside of the GMCs headquarters in London by anguished parents was too much to bear. Frank Dobson, the then Secretary of State for Health, made it abundantly clear on the television programme Newsnight that he felt all three doctors should have been removed from the medical register. The resulting public inquiry chaired by Professor Ian Kennedy could not reverse the GMC’s decision. Between 1998 and 2001, it reported extensively on the broader failings within the management and clinical systems of the NHS to identify efficiently and effectively poor performance. A key part of this, it reported, was that NHS employees who had concerns with poorly performing colleagues must feel able to report them (Bristol Royal Infirmary Inquiry 2001). The principle of medical self-regulation as it had historically been known was under attack. In particular, the report criticised the hierarchical medical ‘club culture’ present in the Bristol heart unit. It noted that this was a reflection of the wider system of professional self-regulation in general. The Bristol inquiry report established the already mentioned Council for the Regulation of the Health Care Professions (subsequently renamed the Council for Healthcare Regulatory Excellence) which was empowered by the state to harmonise the work of health care regulators. It was clear to the GMC and the Royal Colleges that they had to act to remove the club culture of mutual protectionism present within medicine at large. As Stacey (2000: 39) noted ‘In Britain today the balance has shifted a bit towards external governmental control, through the NHS reforms and new institutions such as NICE, but that is not all. The medical profession now seems intent upon regulating pro-actively. Both profession and government are paying more attention to the local level and its relation to national bodies such as the GMC and the Royal Colleges’.
Bristol made the GMC realise its plans for revalidation needed to go ahead at pace. The consultation process started in 1998 with various stakeholders, such as the BMA and patient support groups, attending a GMC conference on the topic. The process was heated with debate raging over whether revalidation was needed, and if so, what form it should take. Members of the public wanted revalidation and voiced the need for it. Conversely, there were ‘rank and file’ members of the profession and members of its elite institutions, which under no circumstances wanted a periodic exam to form the basis for revalidation. The BMA’s Hospital Consultants and Specialists Committee (HCSC) argued against revalidation because of the time and expense it would involve. The Royal Colleges and GMC were for it. In 1999 it was decided that ‘to maintain their registration, all doctors must be able to demonstrate regularly that they continue to be fit to practice in their chosen speciality’ (GMC 1999: 1). What had to be decided would be the form that revalidation would take. A further period of consultation was entered into to decide this. The GMC wanted regional centres to undertake revalidation locally. However, this idea was dismissed by the BMA as impractical. The GMC knew it had to move quickly. As part of its reforms of the NHS and because of the problems highlighted by Bristol the Department of Health had published Supporting Doctors, Protecting Patients (Department of Heath 1999). This proposed that all doctors undergo an annual performance appraisal as part of their NHS contract. The report also proposed the establishment of a National Clinical Assessment Authority (NCAA). The purpose of NCAA was to support NHS management with doctors who are underperforming at work, providing guidance and advice as well as retraining. NCAA was established in 2001 and deals with concerns which are not serious enough to justify regulatory action and referral to the GMC. Its very existence caused a huge amount of anxiety on behalf of the GMC and ‘rank and file’ doctors. However, it quickly became apparent that NCAA would not replace the GMC and was supportive of doctors. Its main function is to support the implementation of clinical governance by providing accountability through employment contract, whereas the GMC provides accountability through the medical register.
The Medical Defence Union views NCAA as having a positive influence on the relationship between doctors and Trusts (BMJ 2003). NCAA certainly sees its role as being ‘to ensure that the decision to suspend a doctor is taken only where it is necessary and will facilitate a resolution and to avert unnecessary or inappropriate suspension’ (NCAA 2003: 1). In an analysis of cases over a six month period it deemed that 85% of suspensions from the workplace were inappropriate and related to ‘a dysfunctional clinical team’ or poor Trust management. Therefore, it recommended resolution via alternative action (NCAA 2003). Yet empirical research continues to show that the inherent uncertainty present in medicine has created an anti-bureaucratic sentiment amongst doctors (i.e. Waring 2003). This, alongside a collective recognition of the inevitability of the occurrence of error, inhibits the reporting of mistakes or the expression of personal doubts about a colleague’s proficiency. At least to anybody who is outside of ‘the medical club’. Clearly old habits die hard.
The proposal for doctors to undergo Annual Appraisal was similarly met with anxiety by the profession. This subsided with the publication of The NHS Plan in 2000 which highlighted that the purpose of Annual Appraisal was to support doctors to maintain ‘medical excellence’ (Department of Health 2000). The BMA negotiated with the state an agreement whereby Annual Appraisal (which was finally introduced nationally in 2003) would be a formative developmental educational exercise, undertaken with another doctor, and ordered in line with the principles of clinical governance and the GMCs Good Medical Practice. In other words, though in principle and practice open to managerial input and review, Annual Appraisal would be essentially doctor controlled. Furthermore, it would not lead to extreme punitive action against the doctor in question, such as removal from the medical register. Every year a doctor would maintain a portfolio of evidence of their activities and achievements. This would contain, for example, an overview of teaching and clinical duties, prescribing lists, clinical guidelines used and results of Trust clinical governance reviews (including for instance a doctors surgical success-failure ratio), certificates of attendance to Royal College CPD courses and speciality conferences, feedback from colleagues, as well as patient feedback or complaints. A Royal College trained colleague would review this portfolio evidence to identify developmental needs for the next year. In principle, the National Clinical Assessment Authority could support a doctor meet identified developmental needs.
The Shipman Case
Although not originally intended to link with revalidation it was generally agreed by 2001 that the successful completion of five Annual Appraisals, after external review by two medical and one lay GMC assessors, would in itself be enough for the purposes of revalidation (Gentleman 2001). Doctors identified as needing support would be subsequently reviewed using the new GMC performance procedures, which were discussed earlier. Though it clearly had merits, this proposed method of revalidation was ‘lightweight’ compared to the original intention of establishing ‘revalidation centres’ to undertake pass/fail tests of doctor’s competence. While it never got off the ground due to the case of serial killer, Harold Shipman, a general practitioner in Hyde, Greater Manchester. Dr Shipman was a popular doctor, well respected by his patients. Between 1995 and 1998, he murdered fifteen elderly patients with lethal doses of diamorphine. Subsequently, it was discovered that between 1974 and 1998 he had murdered two hundred and fifteen patients (all elderly) and doubts remained about a further forty five (Smith 2005). The police informed the GMC they were investigating Dr Shipman in 1998 and he was subsequently convicted of murder in 2000. It was only after his conviction that he was stuck off the medical register.
Similar to the Bristol case, the Shipman case caused a public outcry. It was discovered that Shipman had previously been before the GMC’s disciplinary committee in 1976 for dishonestly obtaining drugs and forging NHS prescriptions. He had been dealt with leniently and essentially ‘let off’ with a warning. This signalled the start of another period of intense criticism for the GMC. The state ordered a public inquiry into the Shipman case, chaired by Dame Janet Smith. As the Secretary of State, Mr Milburn, made it clear at the time: ‘The GMC.must be truly accountable and it must be guided at all times by the welfare and safety of patients. We owe it to the relatives of Shipman’s victims to prevent a repetition of what happened in Hyde’ (quoted in Gladstone 2000: 10).
During the Shipman Inquiry, the GMC made changes to its membership. A new GMC was launched in 2003, just after Irvine’s reign as president ended. The GMC’s executive membership was reduced from one hundred and four to thirty five members, fourteen (40%) of whom were lay members. In February 2003, Professor Sir Graeme Catto took over from Irvine as president of the GMC. Like Irvine before him, Catto continued to maintain its professionally led medical regulation, based on an open and accountable partnership with patients, which best protects the public interest (Irvine 2003, Catto 2006 2007). The GMC continued with its plans for revalidation during this time. Indeed Catto wrote to doctors in 2003 telling them to ‘get ready’ for revalidation. However, the GMCs revalidation plans were to all intents and purposes deliberately slowed down until Dame Janet Smith published her full report in January 2005.
In her report, Smith (2005) highlighted key lessons that needed to be taken on board by the NHS and the medical profession in relation to topics such as the checking of death certificates, scrutiny of single-handed GP practices and the monitoring of death rates and medical records. About the proposal that five Annual Appraisals would equal revalidation, Smith (2005: 1048) felt that this would not have identified Shipman and did ‘not offer the public protection from underperforming doctors’. She highlighted that the formative nature of Annual Appraisal meant that it was unsuitable for use as a summative pass/fail examination tool, as required by Revalidation. She felt that instead of taking a strong stance, as required of it as a regulatory body, the GMC had essentially ‘caved in’ to pressure from within the profession to abandon its original idea of independent regional ‘revalidation centres’. That is, the possibility of ‘summative pass/fail testing’ had been dropped in favour of a ‘light touch’ approach to revalidation that essentially involved ‘rubber stamping’ existing Annual Appraisals. Indeed, Smith (2005: 1174) said that the GMCs original ‘proposals were unpopular with a powerful section of the profession. So the GMC retreated from its earlier vision and devised a system that it calls revalidation but which does not involve any evaluation of a doctor’s fitness to practice’. Concerned about the GMC’s move away from adopting a more rigorous approach to revalidation, she actively criticised Catto’s comparison of it to an MOT on a BBC radio programme. She said, ‘He [Sir Catto] expressed pride in the fact that no other country in the world had a system of time-limited license dependent upon doctors demonstrating they are up to date and fit to practice. To call revalidation an MOT for doctors is a catchword. It is easy for the listener to remember. I think that many people who heard that programme would have taken away the impression that revalidation is a test for doctors, just like the MOT. That is not a true impression’ (Smith 2005: 1086).
A Culture of Medical Protectionism
About the working culture of the GMC, Smith (2005: 1176) echoed the voices of many observers in feeling that although the GMC had changed it had not changed enough: ‘I would like to believe that the GMCs working culture would continue to change in the right direction by virtue of its own momentum. However, I do not feel confident it will do so. I am sure they are many people within the GMC, both members and staff, who want to see the regulation of the medical profession based upon the principles of ‘patient centred’ medicine and public protection. The problem seems to be that, when specific issues arise, opposing views are taken, and as in the past, the balance sometimes tips in the interests of doctors’.
Furthermore, Smith (2005: 1176) discussed how the elected nature of medical members on the GMC made the central issue of protecting the interests of the public difficult for members: ‘it seems..that one of the fundamental problems facing the GMC is the perception, shared by many doctors, that it is supposed to be ‘representing’ them. It is not, it is regulating them..In fact the medical profession has a very effective representative body in the BMA, it does not need – and should not have – two’. Her recommendation was that the makeup of the GMC be changed so elected members were replaced with nominated members, selected by the Privy Council via the Public Appointees Committee after a period of ‘open competition’ on the basis of their ability to serve the public interest. Smith (2005: 1174) concluded that she was ‘driven to the conclusion that, for the majority of GMC members, the old culture of protecting the interests of doctors lingers on’. However, for all her criticisms of the GMC, Smith holds a similar view of medical regulation to that possessed by many doctors who, like Irvine and Catto, believe that the specialist nature of medical expertise means some form of medical self-regulation is necessary to protect the best interests of the general public.
Professionally-led Regulation and the Donaldson Report
For Irvine and Catto a key difference between the modern form of medical self-regulation, which they call professionally led medical regulation, and its traditional more paternalistic counterpart, is that it is built upon a ‘new professionalism’, as first advocated by the sociologist Margaret Stacey in her review of the GMC (Stacey 1992). This means it is built upon the belief that medicine’s traditional ‘club mentality’ must be replaced with the view that self-regulation is a privilege not an inherent right, and so must be open, accountable, and undertaken in partnership with other stakeholders in the regulatory arena (Catto 2006). Such as the public, other health care professions and the state. It also means that bodies such as the GMC must possess clear standards that can be operationalized into performance outcomes against which the fitness to practice of members of the profession can be regularly checked (Irvine 1997 2003, Catto 2006 2007). Time will tell if Irvine and Catto are correct about the ability of this new professionalism to protect the public. What became clear after the publication of the Shipman report was that the criticisms regarding the GMC’s working culture and proposals for revalidation meant the state had to step in and undertake a full review of medical regulation. The then Health Secretary, John Reid, commissioned the Chief Medical Officer, Liam Donaldson, to undertake the review. His subsequent report was published in July 2006 (Donaldson 2006) and informed the content of the 2008 Health and Social Care Act.
Donaldson’s report contained forty-four recommendations. These boil down to the following four key points. First, it recommended that the GMC face yearly questions from a committee of MPs and that, as recommended by Smith (2005), its members should be elected independently via the Public Appointments Commission instead of the medical profession. Second, it recommended that the GMC lose control over undergraduate medical education. This being taken over by the relatively newly constituted Postgraduate Medical Education Training Board (PMETB). The PMETB board has a membership of twenty-five: seventeen medical members and eight lay members. This body was created to oversee the new two-year foundation-training programme for junior doctors, formally the pre-registration and house officer years (BMA 2005). The foundation programme is an outcomes focused competence-based curriculum, possessing explicit standards and structured supervision and assessment tools. It is designed to tackle the prevalence for poor supervision and ad hoc assessments present in traditional postgraduate training, as highlighted by Sinclair (1997). Each foundation year trainee keeps a portfolio, which includes ‘on the job’ peer evaluation and personal reflective elements. The implementation of the Foundation Programme under the banner of Modernising Medical Careers (MMC) forms part of current reforms of specialty and general practice training programmes, implemented in August 2007. Consequently, PMETB works very closely with the Royal Colleges and Donaldson recommended that this continue in order that clear national performance standards in each speciality can be developed for implementation.
Third, Donaldson proposed that although the GMC will still investigate complaints, it would no longer make a final decision on guilt. This will be left up to an independent tribunal. Furthermore, it is recommended the burden of proof required in fitness to practice cases will also be lessened from criminal standards – i.e. beyond all reasonable doubt – i.e. to civil standards – on the balance of probability. This was recommended by Smith to ensure the public interest. Complaints will initially be dealt with at a local level by a ‘GMC affiliate’ who will be appointed in each hospital and primary care trust with the most serious cases being passed up to the GMC to investigate and present the case to the tribunal. Fourth, Donaldson proposed this ‘local GMC affiliate’ should also be responsible for the first of what is a proposed two-strand version of revalidation. The first strand of revalidation, called re-licensing, involves the local ‘GMC affiliate’ via annual appraisal testing a doctor’s fitness to practice so they can stay on the register of approved practitioners. Donaldson proposed the second strand of revalidation, called re-certification, should be managed by the Royal Colleges and involve the direct ‘hands on’ testing a doctor’s fitness to practice so they can first join and subsequently remain on the specialist register. He also recommended that NHS Appraisal should be standardised and audited. Although Donaldson recommended NHS Appraisal be separate from Revalidation, he argued that like Revalidation, Appraisal should involve the collection of 360-degree feedback on a doctor’s fitness to practice (i.e. feedback from medical and non-medical staff as well as patients). If a doctor fails a revalidation test then it is recommended that the NCAA support the doctor in question and work closely with the GMC to plan remedial action. Furthermore, Donaldson recommended that the NCAA develop clear protocols to help doctors with mental health and addiction problems.
‘The combined effect of Donaldson’s measures could be quite profound. They should result in much stronger standards based; professional self-regulation led by a revitalised GMC and the royal colleges. That would be reassuring to the public and patients, strengthen doctor’s professionalism, and appeal to the huge majority of conscientious doctors who take pride in the standing of their profession. Tomorrow’s doctors may well look back and wonder what all the fuss was about.’
Irvine (2006: 966)
As perhaps would be expected, Donaldson’s proposals caused quite a stir amongst the medical profession. Irvine’s response (as noted above) was positive, although Catto’s response on behalf of the GMC would perhaps best be described as welcoming but cautious (GMC 2006). While a study of 800 rank and file doctors for the online publication doctor update (http://www.doctorupdate.net) showed that 90% of doctor’s believed it is unfair to judge a doctors actions on any burden of proof less than ‘beyond reasonable doubt’. Additionally, 90% thought the changes would not stop another Shipman case. 60% said the proposals would mean the end of self-regulation and only 28% thought it positive that the GMC should lose its adjudication powers. These viewpoints are similar to those expressed by the Royal Colleges and the BMA. See for instance, Royal College of Obstetricians and Gynaecologists (2006), or the Academy of Royal Medical Colleges (2006), or the Royal College of General Practitioners (2006).
Despite having some reservations, the Royal Colleges broadly welcomed the focus on developing national standards for medical education and the recommendation that poorly performing doctors will be dealt with locally with an the increased focus on rehabilitation and retraining (Bruce 2007). Revalidation is now generally accepted as being necessary by the profession and the proposal to strengthen the College’s role in it is welcomed by them and the GMC. However, there was concern amongst the Colleges about the proposals regarding the removal of the GMC’s responsibilities for undergraduate medical education. While the Colleges and the BMA rejected the idea that the burden of proof against a doctor in disciplinary proceedings should be less than ‘beyond reasonable doubt’. There was a fear that the elimination of elected professional members from the GMC will result in the erosion of professionally led regulation (Kmietowicz 2006). This is because the proposals took away two of the four major functions of the General Medical Council: adjudication on disciplinary matters and responsibility for basic medical education. One of the remaining two – standards setting – is to be shared with PMETB. Only registration remained intact as a sole GMC function under Donaldson’s proposals.
Future Unknown (For Now)
‘Expert systems bracket time and space through deploying modes of technical knowledge which have validity independent of the practitioners and clients who make use of them. Such systems penetrate virtually all aspects of social life in conditions of modernity – in respect to the food we eat, the medicines we take the building we inhabit, the forms of transport we use…..[but they] depend in an essential way on trust’.
Giddens (1991: 18)
There can be no doubt Donaldson’s proposals reinforce that over the last three decades there has been a cultural and organisational shift within the health and social care context toward emphasising professional accountability. The rationalistic-bureaucratic method of standard setting, surveillance and performance appraisal, which the government has implemented to support the development of clinical governance systems in the NHS, is designed to engender public confidence and trust in the service provided through the management of cost and risk (some would maintain often in that order). Furthermore, this approach shares much in common with the philosophy of accountable outcome based standard setting, operationalized into performance targets for subsequent assessment, which lies at the heart of medicines ‘new professionalism’. After all, as the ex-chairman of the GMC Irvine (2001: 1808) notes ‘the essence of the new professionalism is clear professional standards’.
Medical elites argue this signifies a ‘cultural change’ towards a more transparent and contractually binding regulatory relationship between medicine and the public (i.e. Irvine 1997 2003, Catto 2006 2007). Yet such approaches are often criticised in a somewhat knee jerk fashion by ‘rank and file’ health care professionals as providing prescriptive procedures and rules in the form of protocols and guidelines to be blindly followed without question. There is a feeling of disquiet within the medical profession with what is ultimately seen to be a politically motivated and unrealistic tendency on behalf of government to minimise clinical risk by turning medical work into a series of routine ‘step by step’ rules and procedures against which individual clinician performance can be measured. Because, for many, this fails to recognise the importance of the tacit and personal dimensions of medical expertise and the inherent risks present in messy ‘real world’ clinical practice situations. Certainly, many medical practitioners would argue that these situations are decidedly different from the sanitised world assumed by clinical guidelines and protocols. It is no wonder therefore that, regardless of their views about how it should be undertaken and by whom, many if not all doctors claim that some form of professionally led medical regulation is both necessary and in the public interest.
Freidson has repeatedly highlighted over an academic career spanning four decades that the need for doctors to exercise discretion in their work is an issue which is unlikely to disappear as long as people need and want to see a doctor to help them cope with illness and disease (Freidson 1970 1994 2001). Indeed, in his latest work Freidson (2001) has moved away from his earlier more critical view of medical autonomy (i.e. Freidson 1970). He insists that doctors must be allowed to exercise discretion in their work due to its inherently specialist nature, the tacit-indeterminate foundations of medical expertise, as well as the emphasis medicine collectively places upon providing a community service through promoting public health. He holds that non-medical external regulation of medical work is not always possible or in the public interest. He outlines three methods of regulatory control -’Bureaucracy’, characterised by managerial control, ‘The Market’, characterised by consumer control, and ‘Professionalism’, characterised by occupational self-control (Freidson 2001). He discusses how in the last two decades greater managerially led ‘Bureaucracy’ and a concurrent increase in the rule of ‘The Market’ have successfully challenged ‘Professionalism’, with the doctors increasingly losing the right to exercise discretion in their practice. In particular, he notes that patients are unwilling to adopt the subservient position medicine has historically accorded them. Patients nowadays frequently see themselves as active health care consumers. Additionally, there has been a rise in managerial control over clinical practice through the increased use of standardised administrative procedures, in the form of clinical guidelines and protocols. These exist under the banner of supporting greater patient choice while also improving productivity. Freidson (2001: 181) argues that ‘the emphasis on consumerism and managerialism has legitimised and advanced the individual pursuit of material self-interest….the very [vice] for which professions have been criticised’.
In summary, while previously an ardent critic of the high level of autonomy granted to medicine to control its own affairs, Freidson (2001) now emphasises the positive moral role professions such as medicine can and do play in society. Like Stacey (1992 2000) before him, he holds that the moral code of public service inherent in the concept of professionalism can act to dispel what Wilson (1990: 147) calls ‘the ethical vacuum of the ‘postmodern’ society’.
He argues that health practitioners themselves, not patients and managers, must ultimately control their work activities. Not least of all because the nature of their knowledge demands that society recognise professionals must possess ‘independence of judgement and freedom of action’ (Freidson 2001: 122). Although he recognises that this may not be to everybody’s taste, he calls for a revival of the ‘ideology of service’ and claims that professional monopolies are ‘more than modes of exploitation or domination they are also social devices for supporting growth and refinement of disciplines and the quality of their practice’ (Freidson 2001: 203).
Sociologists like Stacey (1991 2000) and Freidson (1994 2001) echo the common view amongst professionals that it is not the principle of professional self-regulation that in itself is unjustifiable. It is only particular instances where it has been abused. Professionals must now work with the public to make sure such abuses do not happen again (Irvine 2003 2006). The advocacy by medical elites of a ‘new professionalism’ is an attempt to establish a new contractual relationship between the medical profession and the public against the background of increasing government intervention into the field of medical regulation (Slater 2007). Furthermore, recent attempts to change in the field of professional regulation reinforce the fact that effective medical regulation, similar to the effective delivery of health care, requires the cooperation and proactive involvement of individual medical practitioners and their elite institutions. This is because contemporary challenges to professional autonomy bring to the foreground the fact that the principle of medical self-regulation was first institutionalised in the form of the GMC as it provided a workable solution to the complex problem of ‘how to [both] nurture and control occupations with complex, esoteric knowledge and skill. which provide us with critical personal services’ (Freidson 2001: 220).
The 2008 Health and Social Care Act
It is the dynamic nature of this need to both nurture and control professional expertise which has led to the Royal Colleges being allocated a significant role by Donaldson in developing national educational and practice standards, as well as the management of his proposed two-step model of revalidation. It is also why alterations and amendments to Donaldson’s proposals occurred almost immediately after their publication. Indeed, by the time the government published its own discussion paper in light of Donaldson’s proposals, it had already conceded, after lobbying by the GMC, that the GMC should retain control over undergraduate medical education. The GMC is currently undertaking a review of undergraduate education and it will not become clear until 2010 if there will be a national exit examination (even then it is expected a not inconsequential amount of time will lapse before such an exam is finally implemented). Again after lobbying from the GMC, it was agreed the GMC will take over the standard setting and quality assurance role of PMETB altogether (GMC 2008). Consequently, medical control over entry onto (via medical school and junior doctor training) and exit from (via appraisal of their continue competence) the legally underwritten state approved register of practitioners will continue for the foreseeable future. Not least of all because the state does not want the GMC to be completely abolished. It is, after all, a self-funding body paid for by doctors themselves. While peer assessment is still acknowledged, by both medical and non-medical observers alike, as the essential core method by which an individual doctor’s clinical competence can be legitimately assessed and underperformance addressed (Irvine 2003, Catto 2006 2007, GMC 2008). Indeed, the finalised Health and Social Care Act 2008 may well propose greater managerial, patient and inter-professional involvement in revalidation, which will be implemented nationally in 2010. Yet the revalidation process will nevertheless be organized and quality assured by the royal college relevant to a particular medical speciality, operating in tandem with the GMC and NHS management. In its post-Donaldson finalized guise, revalidation is made up of two elements – relicensing and recertification – which incorporate NHS appraisal within them. Relicensing seeks to make current NHS appraisal arrangements more rigorous, with greater direct testing of a doctor’s competence in regards to key day to day clinical tasks. To stay on the medical register, all doctors will now have to successfully pass the relicensing requirement that they have successfully complete five NHS annual performance appraisals. Specialist recertification will also occur every five years. It will involve a thorough ‘hands on’ assessment of a doctor, organized and quality assured by the royal college relevant to their chosen speciality.
The Health and Social Care Act of 2008 did however also put into place significant checks and balances to medical control over doctors activities. In line with Donaldson’s proposals, the GMC will be made up of an equal number of lay and medical members, all of whom will be independently nominated by the Public Appointments Commission. While in spite of medical elite campaigning, the burden of proof required in fitness to practice cases has been lessened from criminal standards – i.e. beyond all reasonable doubt – i.e. to civil standards – on the balance of probability. Consequently, the current ‘state of the field’ surrounding medical regulation appears significantly different to what it was a decade ago, let alone one hundred and fifty years ago when the GMC was first established. The GMC is no longer the sole player in the medical regulatory field and now is more open and publicly accountable than it ever has been (Allsop 2006). Yet the issue of the specialist nature of professional expertise, alongside the concurrent need for professionals to exercise discretion in their work, does create a ‘buffer zone’ that protects doctors from outsider surveillance and control (Freidson 2001). There will no return to the ‘closed shop’ era of club governance. Indeed, medical elites must now increasingly advocate a transparent and inclusive governing regime under the ever-watchful eye of the state. Nevertheless, doctors still possess significant amount of freedom to control their own affairs, particularly when compared to other occupations. The current situation concerning the governance of medical expertise is therefore best summed up by Moran (1999) who argues that: ‘.states are more important than ever before, either in the direct surveillance of the profession or in supervising the institutions of surveillance…[this] has not necessarily diminished the power of doctors; but it has profoundly changed the institutional landscape upon which they have to operate’ (Moran 1999: 129-30).
Yet the problem the GMC faces remains the one the historical narrative presented in this topic shows it has persistently failed to satisfactorily address. Namely, it needs to involve the public in the governance of medical regulation as full and equal partners. To do this the current rhetoric of reform must move past its obsession with viewing the ‘lay voice’ solely in terms of ‘the great and the good’, and recognise the layered, multicultural and multifaceted nature of contemporary British society (Davies 2001). The negative reaction of the BMA and Royal Colleges to the proposal to change the level of doubt necessary for disciplinary action from ‘absolute certainty’ to ‘on the balance of probabilities’, reveals the profession still has a long way to go before it reaches this goal. The medical club is not prepared to open its doors too far. The current lack of trust between doctors and patients works both ways because there is an anticipation of risk amongst both parties: for the patient from poor medical performance and for the doctor from the threat of litigation and removal from the medical register. Despite the rhetoric of ‘partnership’, inherent tensions continue to exist between the stakeholders involved in medical regulation. These tensions need to be met head on, not simply ignored or brushed over as they have been in the past. Every relationship between human beings has its tensions and it ‘can be argued that the public will be best served by a more open debate over the areas of tension between the partners in regulation’ (Allsop 2006: 633). Only time will tell if this debate will come about as a result of the reforms to medical regulation introduced by the 2008 Health and Social Care Act. Particularly as it is arguable the necessary outcome data to ensure an informed debate will not be available until five years or more after the implementation of revalidation nationally in 2010.
State and Professional Forms of Governance
This topic has traced the historical development of the principle of medical self-regulation in the United Kingdom. The events it discussed do seem to add weight to the argument that medical autonomy has declined somewhat in the last three decades from the golden age when ‘doctor knew best’. Individually and collectively, doctors have become more accountable for their actions. Yet it was also noted that doctors still possess a significant degree of control over their regulatory affairs and day to day work activities. However, a key paradox surrounding recent challenges to medical autonomy in the form of doctor’s clinical freedom at the bedside and the principle of medical self-regulation is that they have occurred at a time when the success of medical knowledge and technology to promote public health is greater than it has ever been (Gabe 2004). Here it must be remembered that both this and the previous topic have highlighted how modern medicine and the modern state are entwined entities. Certainly, the close relationship between medicine’s ‘club mentality’ and the Victorian style of ‘club governance’ illustrates that the development of modern medicine and the principle of medical self-regulation is interwoven with the development of the modern state. Consequently, as Moran (1999 2004) argues, instead of signifying medicines apparent decline, it can be said that recent challenges to professional self-regulation bear witness to the fact that there has been a fundamental shift in the legitimate grounds for ‘good governance’ throughout all spheres of contemporary public life. Perkin (1989: 472) similarly argues that there has been a ‘backlash against professional society’ as part of a profound shift in public attitudes towards institutional authority. This he holds coincided with the political and economic re-emergence of liberalism in the 1970s (Stacey 1992). Whether one agrees with Perkin or not the close relationship between medicine and the state highlights the necessity of exploring how sociologists have conceptualised the governance of medical expertise.