1 THE TRANSMUTATION OF DEFERENCE IN MEDICINE: AN ETHICO-LEGAL
PERSPECTIVE
Summary: This article critically considers the question of whether an increase in legal recognition of patient autonomy culminating in the decision of the Supreme Court in
Montgomery v Lanarkshire Health Board in 2015 has led to the death of deference to doctors, not only within the courts and healthcare regulatory arenas in England and Wales but also in the consulting room and the health care system more broadly. We argue that deference has not been eradicated, but that the types of deference paid to doctors and to the medical
profession have changed. In addition, whilst traditionally deference was extended towards the medical profession, increasing instances of deference being shown to other parties in the healthcare setting can be identified, allowing wider debate or recognition of the complexity of understandings, interests and aims of all those involved. Finally, we note instances in which deference to the medical profession has become more hidden.
Keywords: Deference; Medical Treatment; Respect; Medical Profession
INTRODUCTION
In 2001 Lord Woolf expressed the view that while the courts had been excessively deferential to doctors, they were now acting impartially when dealing with disputes involving the
medical profession, whether those related to allegations of negligent care, or were cases in which wider ethical questions were being asked.1 The judgment of the Supreme Court in Montgomery v Lanarkshire Health Board2 might at first blush provide evidence to
corroborate this view, but can it really be said that deference to the medical profession has
1 RH Woolf, ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) Medical Law Review 9(1) 1-16
2 [2015] UKSC 11; [2015] AC 1430, hereafter ‘Montgomery’
2 been eradicated? This article critically considers the question of whether the inexorable march of legal recognition of patient autonomy has led to the death of deference to doctors, not only within the courts and healthcare regulatory arenas in England and Wales but also in the consulting room and the health care system more broadly. This question is explored from a combination of legal and ethical perspectives, building on and advancing the literature within these disciplines in order, we hope, to provide a critical reflection on whether the stated aims of the law and policy in the healthcare arena really do facilitate patient autonomy.
We argue that deference has not been eradicated, but that the types of deference paid to doctors and to the medical profession have changed. In addition, whilst traditionally deference was extended towards the medical profession, increasing instances of deference being shown to other parties in the healthcare setting can be identified, allowing wider debate on or recognition of the complexity of understandings, interests and aims of all those
involved.
While there may be an every day sense of what we mean by deference, our arguments depend upon us first clarifying our own understanding of the new and varying forms of deference which now exist in the healthcare context. The Oxford English Dictionary (OED) defines deference as ‘polite submission and respect’, with submission being defined as ‘the action of accepting or yielding to a superior force or to the will or authority of another person.’3 The Collins English Dictionary (CED) defines deference as ‘1. submission to or compliance with the will, wishes, etc, of another; 2. courteous regard; respect’. It defines submission as
‘obey[ing] someone without arguing,’ following this with the example, ‘[m]ost doctors want their patients to be submissive’4 (a claim which, as we shall see, no longer correlates with the stated policy position of the medical profession on shared decision making between doctor
3 Oxford English Dictionary (Oxford University Press: Oxford, June 2017)
4 <https://www.collinsdictionary.com/dictionary/english/submissive> accessed 18 August 2017
3 and patient). In this piece we will argue that during most of the twentieth century, deference in medicine correlated with the OED definition and the first part of the CED definition, being a practitioner-facing, submissive acceptance that “doctor knows best”. This type of deference was coupled to the patient-facing corollary of paternalism, which Kennedy defined as the view that ‘decisions concerning a particular person’s fate are better made for him than by him, because others wiser than he are more keenly aware of his best interests than he can be.’5 Paternalism then was the overt claim that the medical practitioner was better placed to make healthcare decisions, with deference being submissive acquiescence to it. We argue that over time and through a number of formal and informal mechanisms, deference and
paternalism have become uncoupled, leaving paternalism exposed and able to be eradicated from much official discourse.
The removal of its partner, paternalism, has had two effects on deference. First, the nature of deference has changed somewhat. Now, in circumstances where it no longer has paternalism to respond to, it is being expressed by a larger number of parties to discussions on treatment decisions, including medical professionals, with such parties demonstrating a willingness to recognise others as having an undoubted claim to be heard and to co-determine any outcome or decision. Thus, and more in keeping with the second part of the CED definition, it now exists as more of a mutual regard or respect for the views of others, and for their entitlement to have those views taken into account. The new form of deference is shown in certain circumstances to patients, for example in policy positions which require the facilitation of their participation in making decisions on their treatment, and now by the law in the form of the Montgomery test. Secondly, the presence of deference to the medical profession has become more hidden as policies and laws develop to sweep paternalism from the consulting room and ostensibly give voice to patients’ autonomous wishes. Despite this, in the more
5 I. Kennedy, Treat me Right: Essays in Medical Law and Ethics (Clarendon Press: Oxford: 1988) 333
4 formal or official context, deference is afforded to the profession of medicine (either in its formal guise or in terms of some ill defined group of ‘medical experts’) and in the clinical setting to the doctor on the basis that s/he seems trustworthy and knowledgeable. While its presence therefore may be more or less apparent in any given setting, deference in some form, and to a variety of parties, remains ever-present.
In making these arguments we consider the presence and nature of deference in four settings.
First, we explore the position of the courts on the relationship between healthcare
practitioners and patients particularly since the much lauded judgment of the Supreme Court in Montgomery.6 Here, we argue that while the implementation by the Court of the
professional regulatory guidelines as the blueprint for the required legal standard of disclosure7 could be seen as an instance of the courts again accepting the medical
professions’ view as determinative of the required approach, there are encouraging signs that what has been endorsed is a principled commitment to patient autonomy in decision making.
We then move to the relationship between patients and healthcare practitioners as manifested in clinical encounters and observe that, despite policy positions on including patients8 in decision making, and even in the face of the law’s attempt to redress it in Montgomery, the unbalanced nature of the doctor-patient relationship remains extant in terms of knowledge as well as formal and informal social power. Our third area of inquiry is that of healthcare policy making where we identify the increasing medicalisation of personal and social problems, and an attendant call for professional validation of these problems before other sectors in society will act, as a major entrenchment of deference to the profession. Finally we
6 Op cit n. 2
7 Whether those standards are achievable or achieved in practice is an important question but one which falls outside the remit of this piece.
8 Some prefer to use the term ‘consumers’ of health care instead of ‘users’ or ‘patients’ a point made by the Supreme Court in Montgomery at [75], but apart from rejecting the implicit ideological commitments in such a terminological shift, we also think that it does not correctly capture the public understanding of the relationship between patients and the health care system.
5 focus on the professional regulation of doctors’ actions, observing deference to the medical profession itself in disciplinary proceedings against individual practitioners who are
perceived to have breached its mores and put its reified position in jeopardy. We conclude that to sound the death knell of deference would be premature. Paternalism, the assertion that the clinician is entitled to make decisions on an individual’s behalf by dint of the knowledge which being a member of the medical profession bestows upon her, might be dead or at least on its death bed, but deference, constantly adapting in form and direction, is still very much alive.
DEFERENCE IN THE COURTS
We turn first then to an apparent site of major changes in the relationship between patients and the medical profession, the courtroom. The Montgomery9 case involved a mother’s clinical negligence claim in relation to both her antenatal care and the management of her labour and delivery of her baby. She complained that she should have been warned of the risks of shoulder and neck injuries to her child through natural birth as opposed to caesarean section. The Supreme Court took this opportunity to declare a rebalancing of the position of doctors and patients in the context of providing information on the inherent risks of proposed treatments. Stating that patients are ‘persons holding rights, rather than …the passive
recipients of the care of the medical profession’,10 the court held that healthcare practitioners owed
‘a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular
9 Op cit n.2.
10 Ibid at [75]
6 case, a reasonable person in the patient’s position would be likely to attach
significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’.11
Identified as being one amongst a cohort of cases12 in which the courts’ approach ‘entails identifying the purpose of the law as being the protection of autonomy and assessing the current legal regime to see if it meets that aim’,13 this new position represents the end point of a glacial shift in the medico-legal approach to information provision to patients.14 The length of the historical entrenchment of paternalism and deference in medicine is disputed. Teff claims that ‘non-disclosure and deference have been among the hallmarks of the paternalistic tradition which has dominated orthodox medical practice over a period of some 2,500
years’,15 while Brazier asserts that deference took hold only from around the mid nineteenth century.16 In any event, despite a chipping away at this in law over the past half century,17 it seemed self-evident to authors in the 1980s and 1990s that, for a variety of historical and pragmatic reasons, doctors were in a position of power over patients,18 with paternalism
11 Ibid at [87].This position was subject to therapeutic privilege i.e. that the doctor could withhold information which she felt would pose serious risk to the patient’s health, see [88]. For analysis of this see E Cave, ‘The Ill- Informed: Consent to Medical Treatment and the Therapeutic Exception’ (2017) 46(2) The Common Law World Review, 140-168
12 Chester v Afshar [2005] 1 AC 134 and the Australian case of Rogers v Whitaker (1992) 175 CLR 479
13 R Heywood and J Miola, ‘The Changing Face of Pre-Operative Medical Disclosure: Placing the Patient at the Heart of the Matter’ (2017) 133(Apr) Law Quarterly Review at 320
14 The Supreme Court noted in Montgomery at [69] that in recent case law the standard formulation of the requirement of risk disclosure had been that set out by Lord Woolf MR in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 while Department of Health and GMC guidance had treated Chester (op cit n. 11) as the leading authority.
15 H Teff, Reasonable Care: Legal Perspectives on the Doctor-Patient Relationship (Clarendon Press: Oxford, 1994) 69
16 M Brazier, ‘The Age of Deference – A Historical Anomaly’ in MDA Freeman (ed) Law and Bioethics (OUP 2008) 464-476
17 Note the shift in position in case law on the position of doctors and patients and risk disclosure to patients from Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 through Bolitho v City and Hackney Health Authority [1998] AC 232, Pearce (op cit n.14) and Chester (op cit n.12) to Montgomery (op cit n.2)
18 H Teff, op cit n. 15; I Kennedy, op cit n.5; MA Jones, ‘Informed Consent and Other Fairy Stories’ (1999) 7(2) Medical Law Review 103-134
7 remaining ‘remarkably resilient considering the strong countervailing social and cultural changes which have shaped modern society’.19
What were the causes of paternalism’s resilience? Kennedy posited the expansion of the
‘alleged unique competence of the doctor’ as one of these, suggesting that ‘the doctor himself has encouraged the process whereby he is seen as the purveyor of panaceas. Though, if pressed, he would be the first to deny that he has any panaceas’.20 Harrington identifies a strong role for the courts in the maintenance of this position, arguing that the post-war tendency of the courts to defer to the medical profession was a pragmatic strategy to manage the paradoxes to which the law in general and medical law in particular give rise.21 In the face of competing ethical rationales meaning that no right answer can be arrived at, ‘the final decision is remitted [by the courts] to the conscience of the individual practitioner’22 as a means of dealing with ethical, legal and clinical uncertainties. In the arena of information disclosure, this approach was exemplified in the case of Sidaway,23 the effect of which was to endorse the approach set out in Bolam v Friern Hospital Management Committee,24 which held that if an approach conformed to a responsible body of medical opinion it would not be regarded as negligent.
Over time, efforts have been made to overcome the ‘persuasive power of paternalism’25 through healthcare policy initiatives,26 and through the legal mechanism of consent. While
19 H Teff, op cit n.14
20 I Kennedy, op cit n,5, 22
21 J Harrington, ‘Of Paradox and Plausibility: The Dynamic of Change in Medical Law’ (2014) 22(3) Medical Law Review 305-324. See also MA Jones, op cit n. 18; I Kennedy, ‘The Patient on the Clapham Omnibus’ 47 (1984) MLR 454; M Brazier, "Patient Autonomy and Consent to Treatment: The Role of the Law?" 7 (1987) LS 169; S Sheldon, ‘Rethinking the Bolam Test’, in S Sheldon and M Thompson (eds) Feminist Perspectives on Health Care Law (Cavendish: London 1998); J Montgomery, ‘Law and the Demoralisation of Medicine’ 26 (2006) LS 185
22 J Harrington, ibid at 307
23 Op cit n.17
24 [1957] 2 All ER 118
25 I Kennedy, op cit n.5, 347
26 Department of Health, Liberating the NHS: No Decision About Me, Without Me (2012)
8 the purpose of the latter was once claimed to be that of a ‘flak jacket’, protecting doctors from the incoming hostile fire of the negligence claim,27 it has increasingly been viewed as
‘an ethical doctrine about respect for persons and about power [which] seeks to transfer some power to the patient in areas affecting her self-determination, so as to create the optimal relationship between doctor and patient, which is the same as that between any professional and his client – namely, a partnership of shared endeavour in pursuit of the client’s interests’.28
Montgomery therefore enshrines in law an approach which is intended to ensure that consent is given only where the patient has been informed of risks in a way which meets her needs and has thus been hailed as the final step in a legal power shift from paternalism to patient autonomy.29
The medical profession has expressed mixed views as to the implications of Montgomery for practitioners in their discussions about risk with patients. The GMC, which intervened in the case, stated that it was ‘pleased that the Court endorsed the approach advocated in our guidance and in our view the judgment brings the law up-to-date with good medical practice’.30 In contrast, the Royal College of Surgeons (RCS) issued new guidance on obtaining consent31 disputing the GMC’s account of the approach taken in medical practice.
27 See the judgment of Lord Donaldson MR in Re W (A Minor) (Medical Treatment) [1992] 3 WLR 7584, All ER 627
28 I Kennedy, op cit n.5, 178.
29 R Heywood and J Miola, op cit n.13, 297. This is not to say that it has gone without criticism or concern, expressed in this piece by Heywood and Miola in relation to what it means for the relationship between medical law and medical ethics; and in J Montgomery and E Montgomery, ‘Montgomery on Informed Consent: An Inexpert Decision?’ 42 (2016) Journal of Medical Ethics 89-94 in relation to a perceived failure to appreciate the nature of professional expertise.
30 M Agnew, ‘Making decisions together: the implications of the Montgomery judgment’ (29 May 2015)
<https://gmcuk.wordpress.com/2015/05/29/making-decisions-together-the-implications-of-the-montgomery- judgment/> accessed 27 October 2017
31 Royal College of Surgeons, Consent: Supported Decision-Making, A Guide to Good Practice (November 2016) <file://nask.man.ac.uk/home$/Downloads/Consent_2016_combined%20P2.pdf> accessed 1 September 2017
9 Rather, it stated, ‘until 2015 established clinical practice – as well as a large body of case law – followed a more paternalistic approach. … The Montgomery case closed the gap between regulatory guidance and case law by shifting the focus of consent towards the specific needs of the patient’.32 The apparent lack of consistency in information disclosure within the profession before Montgomery is concerning but cannot be explored in depth here.33 Despite this apparent schism, the Supreme Court adopted the GMC’s position as being that which represented the profession as a whole, a logical inference given the GMC’s statutory powers under the Medical Act 1983 s.35 to advise the medical profession on matters relating to conduct, performance and ethics. The court declared that other social and legal developments meaning that patients have access to more information about their health and treatment than that solely provided by the doctor, as well as developments in human rights law reflecting fundamental values,
‘[P]oint away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors … treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices’.34
32 Ibid., p3
33 For a consideration of early problems with an ‘agreed’ professional standard of disclosure see I Kennedy,
‘The Patient on the Clapham Omnibus’ in Treat me Right: Essays in Medical Law and Ethics (Clarendon Press:
Oxford, 1988) 175-212
34 Montgomery op.cit. n. 2 [81]
10 In the court’s view, it was now necessary to give this approach legal force ‘so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires’.35
So what does this mean for deference? In its endorsement of patients’ autonomy Montgomery might be argued to be an example of the independent judicial approach described by Lord Woolf,36 but this would not be quite accurate. While the enshrining in law of respect for patients’ wishes in medical decision making is to be applauded, it has not been achieved in the face of a radical departure from the requirements of professional practice.37 By the profession’s own account38, it had already respecting patients’ wishes in relation to
information disclosure for some years. Instead, it can be said that Montgomery aligned the legal test on the requirement for information disclosure with the standard established by the medical profession, akin to the act of ‘endorsing’39 the medical professional standard which was undertaken by the court in Bolam.40 While the professional standards applicable in Bolam and Montgomery differ widely, in isolation, the court’s process of enshrining them in law is suggestive of a traditional deferential approach.
However, the reasons why the courts and medical profession have felt that patient
involvement in decision making is important tell us something about whether this is really the case. While there is some dispute about whether shared decision making contributes to better therapeutic outcomes for patients,41 there is evidence to suggest that it can improve their
35 Montgomery, op cit n.2 at [93]. The arriving at this decision in law post its implementation by the profession in practice is as a result of the law being ‘operatively closed’ – the medical profession’s approach could not change the law, this could only be done within the legal system itself; see J Harrington, op. cit. n.21, 311
36 RH Woolf, op.cit. n.1
37 Although the Royal College of Surgeons would likely beg to differ on this point.
38 Subject to the exception of the Royal College of Surgeons, op.cit. n. 31
39 Op cit n.30
40 Op cit n. 24
41 K Hauser, A Koerfer, K Kuhr, C Albus, S Herzig, J Matthes, ‘Outcome-Relevant Effects of Shared Decision Making’ (2015) 112(40) Deutches Ärzteblatt 665-671
11 involvement in and satisfaction with their care,42 and it had thus become ‘an integral aspect of professionalism in treatment’.43 Without more, this might be seen simply as in instrumental justification for engaging patients in decision making about their own care – patients who are more satisfied will be less of a drain on the healthcare system’s resources. However, there is much to suggest that this outcomes-focused approach is embedded within a principled commitment to the expression of patient autonomy within the therapeutic relationship, such as the GMC’s enshrining of the principal of partnership in their guidance on consent.44 What we now see therefore is an expression of the new form of deference involving a mutual regard for the views of each party and a principled commitment to their entitlement to have these taken into account.
DEFERENCE IN THE DOCTOR-PATIENT RELATIONSHIP
We move now to explore what might be happening in practice in the doctor-patient encounter and to ask whether deference to the healthcare practitioner really has been eradicated here.45 As noted above, health policy and practice and now the law recognise the role of the engaged patient in maintaining levels of satisfaction in healthcare46 through shared decision making, defined as ‘an interactive exchange between provider and patient to empower patients to ask
42 The Health Foundation, ‘Helping People Share Decision Making: A Review of Evidence Considering whether Shared Decision Making is Worthwhile’ (2012)
<http://www.health.org.uk/sites/health/files/HelpingPeopleShareDecisionMaking.pdf> accessed 20 Feburary 2018
43 Montgomery, op cit n. 2 at [78]
44 General Medical Council, Consent: Patients and Doctors Making Decisions Together (2008)
<https://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp> accessed 20 February 2018
45 For consideration of the changing role of the patient in two alternative settings i.e. research into emerging biotechnologies and where things have gone wrong in healthcare, see A Kerr and S Cunningham-Burley,
‘Embodied Innovation and Regulation of Medical Technoscience: Transformations in Cancer Patienthood’
(2015) 7(2) Law, Innovation and Technology 187-205 and A-M Farrell and S Devaney, ‘When Things Go Wrong: Patient Harm, Responsibility and (Dis)Empowerment’ in C Stanton et al (eds) Pioneering Healthcare Law: Essays in Honour of Margaret Brazier (Routledge: Abingdon (2016)) 103-115
46 People and Communities Board, A New Relationship with People and Communities: Actions for Delivering Chapter 2 of the NHS Five Year Forward View (February 2017)
<https://www.nationalvoices.org.uk/sites/default/files/public/publications/a_new_relationship_with_people_and _communities_0.pdf> accessed 27 October 2017
12 questions and make shared decisions about their health’.47 In 2014 it was noted in the NHS Five Year Forward View48 that
‘many (but not all) people wish to be more informed and involved with their own care, challenging the traditional divide between patients and professionals, and offering opportunities for better health through increased prevention and supported self-care’.49
This document set out strategies to enable patients to access more information about their conditions and treatment, to support them in the management of their own health, and to
‘increase the direct control patients have over the care that is provided to them’.50 So does this mean that deference to the expertise of the practitioner wanes as the expert patient becomes empowered to become an equal partner in such consultations?51 Joseph-Williams et al define patient ‘power’ as their ‘perceived capacity to influence the decision making
encounter’.52 A variety of factors can affect how effectively patients are able to wield such power through engagement in shared decision making.53 Some of these arise out of
47 N Gutierrez et al, ‘Health Literacy, Health Information Seeking Behaviors and Internet Use Among Patients Attending a Private and Public Clinic in the Same Geographic Area’ (2014) J Community Health 39, 83-89 at 83. See for example MA Stewart, ‘Effective Physician-Patient Communication and Health Outcomes: A Review’ (1995) Canadian Medical Association Journal 152(9) 1423-1433
48 NHS Five Year Forward View (October 2014) <https://www.england.nhs.uk/wp- content/uploads/2014/10/5yfv-web.pdf> accessed 27 October 2017
49 Ibid. p6
50 Ibid. p12. Subsequently, the People and Communities Board provided recommendations about how to achieve such patient empowermentand its concomitant effects of better health and healthcare outcomes. See People and Communities Board, op. cit. n.46 and People and Communities Board, Six Principles for Engaging People and Communities: Putting them into Practice (June 2016)
<https://www.nationalvoices.org.uk/sites/default/files/public/publications/six_principles_- _putting_into_practice_-_web_hi_res_-_updated_nov_2016.pdf> accessed 27 October 2017
51 NJ Fox, KJ Ward, AJ O’Rourke, ‘The “Expert Patient”: Empowerment or Medical Dominance? The Case of Weight Loss, Pharmaceutical Drugs and the Internet’ (2005) 60 Social Science and Medicine 1299-1309; S Nettleton and R Burrows, ‘E-scaped Medicine? Information, Reflexivity and Health’ (2003) 23(2) Critical Social Policy 165-185
52 N Joseph-Williams, G Elwyn, A Edwards, ‘Knowledge is Not Power for Patients: A Systemic Review and Thematic Synthesis of Patient-Reported Barriers and Facilitators to Shared Decision Making’ (2014) 94(3) Patient Education and Counseling, 291-309, 306
53 For example, ‘health literacy’. See <https://hee.nhs.uk/our-work/hospitals-primary-community- care/population-health-prevention/health-literacy> accessed 27 October 2017
13 organisational and systemic factors which lie beyond the doctor-patient relationship.54 Others however arise out of entrenched assumptions and behaviours, such as patients’ fear of being labelled as troublesome as a result of asking questions, their concern about negative
consequences that might arise out of that for their healthcare;55 or their undervaluing of their own knowledge or contributions to discussions about their preferences and experiences, particularly when compared to that of clinicians.56 Here, we argue that despite the support of technological tools and strategies to assist patients before, during and after such encounters, a number of barriers exist which prevent the patient from throwing off the yoke of deference to those whom they perceive to be more expert than themselves. We do so by exploring
patients’ use of online information sources outside the clinic.
An information asymmetry exists between patients and healthcare practitioners, both in terms of access to information and understanding of it. Patients are overcoming their access deficits through the use of online resources such as discussion forums and healthcare apps. In the UK, 50% of the population report using the internet for self diagnosis, and 75% search the web for health information.57 A burgeoning market in digital medical information is developing, with 43000 medical apps available in 2016 and reports that 500 million people worldwide would use a medical app in that year.58 This was recognised by the Supreme Court in Montgomery which stated,
‘it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of
54 N Joseph-Williams et al, op cit n.52
55 Ibid.
56 Ibid.
57 Nuffield Trust, Delivering the Benefits of Digital Health Care, (February 2016)
<https://www.nuffieldtrust.org.uk/files/2017-01/delivering-the-benefits-of-digital-technology-summary-web- final.pdf> accessed 27 October 2017, 6
58 Ibid.
14 variable quality, reliable sources of information can readily be found)…. It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors’.59 Given that ‘possessing the authority and legitimacy to make a diagnosis… is a source of power [and] a significant contributor to the status and dominance of the medical
profession’,60 might patient access to information reset the balance of power between patients and clinicians? Some believe so, claiming that ‘technology is rewriting the relationship between patients, professionals and care providers’.61 To our minds however, and as we discuss below, it is clear that many online roads lead back to the clinic.
One information resource used by patients is the online forum on which they can discuss symptoms, diagnoses and treatments with others who have had similar experiences. Patients report that such forums can provide much valued support62 which can be used at a time convenient to them to supplement or help understand interactions with their treating clinician and act as an aid to decision making.63 Engaging in such forums can help to express
autonomy as individuals can engage in the manner which suits them, and with those other patients they wish to,64 disregarding views they deem inaccurate or irrelevant. In gathering and sharing such information, patients can become expert in their condition and its
59 Montgomery, op cit n.2 at [76]
60 D Lupton and A Jutel, ‘“It’s Like having a Physician in your Pocket! A Critical Analysis of Self-Diagnosis Smartphone App”’ (2015) 133 Social Science and Medicine 128-135 at 129
61 Nuffield Trust, op.cit. n.57, 15. It has also been noted that the provision of effective online health information can reduce burdens on direct healthcare services, see WA Spoelman, TN Bonten, MW Waal, T Drentha, IJ Smeele, MM Nielen, NH Chavannes, ‘Effect of and Evidence-Based Website on Healthcare Usage: An Interrupted Time-Series Study’ (2016) BMJ Open DOI:10.1136/bmjopen-2016-012166
62 J Turner, J Gruber and J Meyers, ‘Developing an Optimal Match within On-Line Communities’ (2001)51(2) Journal of Communication 231-251
63 Fox NJ at al, op.cit. n.51; L Elwell, S Grogan, N Coulson, ‘Adolescents living with Cancer: The Role of Computer-Mediated Support Groups’ (2011) 16(2) Journal of Health Psychology 236-248; E Brady, J Segar and C Sanders, ‘“You Get to Know the People and Whether They’re Talking Sense or Not”: Negotiating trust on Health-related Forums’ (2016) 162 Social Science and Medicine 151-157; S Ziebland and A Herxheimer, ‘How Patients’ experiences Contribute to Decision Making: Illustrations from DIPEx’ (2008) 16(4) Journal of Nursing Management 433-439
64 Brady E et al, ibid.
15 manifestation in their own bodies and lives. Yet even in such bespoke developments of knowledge, deference to the medical profession and the information it espouses is clearly identifiable. Fox et al note that in the midst of such experiential examination, ‘there remain[s]
an underlying commitment to medical models of illness and treatment’.65 Deference to the medical profession is embedded in forums as users are frequently advised by other credible participants to seek advice from healthcare professionals.66 Thus, the expert patient develops their expertise within a pre-defined and strongly entrenched biomedical model of health and disease which Fox et al characterise as constraining, rather than empowering.67
The embeddedness of deference to medicalised approaches to health emerges similarly in relation to medical apps. Self diagnosis apps are ‘positioned as neutral, objective
technologies’, as such ‘offering certainty and objectivity to the practice of self-diagnosis as part of participating as a digitally engaged patient’.68 However, within such apps ‘specific meanings, concepts and practices are enacted in relation to health, disease, health care, public health, embodiment and selfhood’.69 As Giddens states,
‘[t]he reliance placed by lay actors upon expert systems… is a matter of the
calculation of benefit and risk in circumstances where expert knowledge does not just provide that calculus but actually creates (or re-produces) the universe of events, as a result of the continual reflexive implementation of that very knowledge’.70
Lupton and Jutel note that apps’ claims to neutrality are undermined by the common use of disclaimers, with users ‘cautioned to use the information they derive from the apps
65 NJ Fox et al, op.cit. n.51, 1307
66 E Brady et al, op. cit. n.63
67 NJ Fox et al, op.cit. n.51
68 D Lupton and A Jutel, op.cit. n.60, 133
69 D Lupton ‘Apps as Artefacts: Towards a Critical Perspective on Mobile Health and Medical App’ (2014) 4(4) Societies 606-622 at 610
70 A Giddens, ‘The Consequences of Modernity’ (Stanford University Press: Stanford, 1990) 84
16 judiciously by seeking further medical advice from the ‘real’ experts: qualified doctors’.71 Thus, ‘the diagnostic process is technically, administratively and legally still the preserve of medicine’.72
What does this mean for the doctor-patient relationship? Patients combine information garnered online with their own experiences and those related by others to develop what Pols describes as a form of ‘practical knowledge’ about their condition which they then use ‘to translate medical and technical knowledge into something useful to their daily life with disease’.73 This has the potential to disrupt traditional exclusive reliance on the doctor and the knowledge they possess,74 and is reflective of what Giddens characterises as the ‘admixtures of deference and scepticism, comfort and fear’75 which accompany our reliance on experts and the systems they espouse.
Even without the exhortations to seek medical advice to which patients using online sources are exposed, scepticism about the quality of some online information encourages patients to return to their doctor. Patients display preferences for certain sites over others on the basis of what appears to be a common understanding that there will be variation in the accuracy of sources of online information.76 While some express an ability to evaluate the quality of the information available, and thus obviate risks associated with inaccurate claims,77 for many, online information is obtained before engaging in discussions with others, such as friends or
71 D Lupton and A Jutel, op cit n.60, 133
72 Ibid., 134
73 J Pols, ‘Knowing Patients: Turning Patient Knowledge into Science’ (2014) 39(1) Science, Technology, &
Human Values 73-97
74 A Giddens, op.cit. n.70, 85
75 Ibid, 90
76 J Powell, N Inglis, J Ronnie, S Large, ‘The Characteristics and Motivations of Online Health Information Seekers: Cross-Sectional Survey and Qualitative Interview Study’ (2011) 13(1) Journal of Medical Internet Research e20
77 E Brady , et al, op.cit. n.63, 155
17 healthcare practitioners78 and patients still rely on healthcare providers as the principal or at least a major source of health information and advice.79
It is clear that many patients now play a more informed role in discussions about their health and their resort to online information can be seen as a sophisticated response to the
uncertainty inherent in medical decision making. It is in their utilisation of such knowledge that deference re-emerges as informed patients recognise the limits of their capacity to make an applied use of such knowledge. Access to health information is clearly possible but an empowered patient will often need to collaborate with their physician in order to be able to understand, assess and use it. Where such deference is matched by that of practitioners who recognise their own obligations to defer to the patient’s own knowledge and experience, this may facilitate the empowerment which is seen as being good for their engagement in
healthcare.
Over three decades ago when considering the dearth of information available to patients about their healthcare, Katz declared, ‘if a conspiracy of silence exists, it takes place in the consulting room, right in front of the patient’.80 That silence has now been replaced by a cacophony of sound from online healthcare information providers as well as well-intentioned policies meant to give voice to the patient. Active conspiracy no longer silences patients, but more needs to be done to ensure that mechanisms to empower are given true effect. Shared decision making requires acknowledging the superior technical expertise of doctors, and many patients may justifiably still want to rely on the judgement of doctors. However, if our new form of deference is truly to be considered mutual, it must involve a recognition not only of patients’ entitlement to be provided with information, but also of the value of the plethora
78 E Sillence, P Briggs, PR Harris, L Fishwick, ‘How Do Patients Evaluate and Make Use of Online Health Information?’ (2007) 64 Social Science and Medicine 1853-1862
79 N Gutierrez and TB Kindratt, op. cit. n.47, 83-89
80 J Katz, The Silent World of Doctor and Patient (New York: The Free Press, 1984) 56
18 of valuable information, both technical and personal, which patients bring to the consulting room.
DEFERENCE IN POLICY MAKING
We now move from considerations of deference relating to doctor-patient interactions to wider forms of deference in healthcare policy. Policy making involving or impacting on the medical profession and medical work occurs in a very wide range of areas and at many different levels of policy setting. In the following we focus on an analysis of two specific case studies from completely different areas of policy making, each illustrating a different aspect of deference to the medical profession. The first case-study is an analysis of the current ‘choice agenda’ in the NHS and the second an analysis of the recent shift in transport policy from promoting to discouraging the use of diesel vehicles.
The idea that patients should be provided with more choice about which services they are entitled to access when using the NHS has been a prominent part of the official policy drivers for NHS policy making as part of the ‘choice agenda’ for a very long time.81 Patient choice is claimed to be a good in itself as it respects self-determination and promotes patient dignity, but it also has instrumental value because it underpins competition between different
providers and the benefits that are assumed to flow from such quasi-market competition, e.g.
efficiency gains and improved quality. The combination of a range of different justifications for introducing and expanding patient choice can, for instance, be seen in a speech given by the then Secretary of State for Health, Andrew Lansley in 2011:
‘If we want the NHS not to treat patients as though they are parts on a conveyor belt, we need to go further.
81 <https://www.england.nhs.uk/ourwork/pe/patient-choice/> accessed 27 October 2017
19 We need to empower patients, their doctors and nurses to work together to get the best possible care.
We need patients to be fully engaged in the decision making process. Having a voice, loud and clear.
Patients need real, meaningful information to help them make those decisions.
We need patients to be treated as people, never as numbers.
When you properly involve people in the decisions about their healthcare:
• then doctors and nurses are supported to demand the best treatments,
• to innovate,
• and to drive out waste and wasteful practices.
This is the result of shared decision making.
That is why I am an advocate of patient power.
But to harness that, patients must be given real options to choose from and be fully involved in the decisions taken about their care’.82
The NHS Choice Framework provides a list and description of the choices patients can make.83 But, if patients are given more choice and thereby more power than they used to have, then it might be assumed that somebody else must be losing power (and perhaps the opportunity to exercise choice). The two major groups seemingly losing power are the previous monolithic NHS organisations and the health care professions. However, the relation between choice and power is complicated and the distribution of power is not
82 <https://www.gov.uk/government/speeches/speech-7-december-2011-andrew-lansley-a-patient-centred-nhs>
accessed 27 October 2017
83 <https://www.gov.uk/government/publications/the-nhs-choice-framework/the-nhs-choice-framework-what- choices-are-available-to-me-in-the-nhs> accessed 27 October 2017
20 necessarily a zero sum game. Patients can gain decision making power without the NHS or the health care professions losing power. Involving patients and giving them choice does not necessarily diminish the power of other actors, if those other actors control the parameters of the choice and the decision making process.
In the NHS choice is always subject to the constraints that are generated by the resources available. An ambulatory patient in a large English city with several hospitals can, for instance choose which one of the city’s accident and emergency departments to attend, but must accept and has no choice over the waiting time in the chosen A&E84. The structures and processes for making resource allocation decisions in the NHS are extremely complex and change with each formal or informal restructure of the NHS (the latest restructure being the introduction of sustainability and transformation partnerships (STPs) and Accountable Care Organisations (ACOs) without any clear basis in statute or regulations).85 A full exploration of how resource allocation circumscribes patient choice is beyond the scope of this paper, but it is worth noting that at the intermediate and lower levels of the NHS structure there is very considerable input from medical professionals in resource allocation decisions. The current Clinical Commissioning Groups (CCGs) are designed to give power over large parts of the health care budget to general practitioners. Their boards also contain lay members, and at least one nurse and one secondary care consultant; but research indicates that the non-GP board members have little power.86
84 Although it is worth noting that the patient who calls an ambulance has no choice concerning where the ambulance takes her.
85 <http://www.nhsconfed.org/resources/2016/09/understanding-sustainability-and-transformation-plans>
accessed 27 October 2017; <https://www.kingsfund.org.uk/topics/sustainability-transformation-plans> accessed 27 October 2017; <https://www.bma.org.uk/collective-voice/policy-and-research/nhs-structure-and-
delivery/sustainability-and-transformation-plans> accessed 27 October 2017
86 A O'Shea, M Chambers, and A Boaz, ‘Whose Voices? Patient and Public Involvement in Clinical
Commissioning’ (2017)20(3) Health Expectations 484-494; H Allan, R Dixon, G Lee, J Savage, and C Tapson,
‘Governing Nody Nurses’ Experiences of Clinical Commissioning Groups: An Observational Study of Two Clinical Commissioning Groups in England’ (2017) 22(3) Journal of Research in Nursing 197-211
21 The other important feature of choice in the NHS is that it is often a choice that is
significantly controlled by a medical professional. Patients can choose at which hospital to have a particular investigation or operation, but only if they are first referred for that
investigation or operation by their GP. As the front page of the NHS Choices web-site states with refreshing honesty in its banner ‘If your GP refers you… You can choose’.
<Figure 1>
So, while doctors are no longer acting paternalistically by telling patients which treatment they will receive, they are still the gatekeepers to the promised land of patient choice and the exercise of their autonomy. And for the patients for whom the gates are opened, their choice will most often be circumscribed by decisions made by the medical profession.87 As a patient with suspected insulin-dependent diabetes you can choose which diabetes clinic to be referred to, but once at the clinic you will be on a diagnostic pathway described in detail in a NICE Guideline ‘NG17 - Type 1 diabetes in adults: diagnosis and management’ and no matter which diabetes clinic you attend in England the doctors will follow this guideline in relation to your later treatment and follow up.88 Neither the patients, nor the doctors have any real choice in the matter, and the same will be true for many other common conditions. There is choice of location, but not really choice of treatment.89 The patients may not have to defer to the individual, paternalistic doctors but they still have to defer to the medical profession in a traditional sense of submitting to its will, and the chance of any real effective choice of a
87 J Harrington, op.cit. n.21
88 Compliance with the guideline is partly enforced by NICE Quality Standard ‘QS6 – Diabetes in Adults’.
Every health care organisation treating diabetics will have a strong interest in fulfilling the criteria in the quality standard.
89 A patient can of course refuse the treatment offered, but that does not entail the converse that the patient can choose an alternative treatment of their own choice. Burke v GMC [2005] EWCA Civ 1003– they can choose from a range of treatments offered and must be told about alternative treatments that are available.
22 different treatment has probably declined and not increased.90 It might be argued that NICE and the medical profession are not co-extensive, but as discussed below NICE processes are strongly influenced by the profession and NICE guidelines gain a significant part of their practical authority because they are developed by medical experts.
The proliferation of NICE Guidelines and other authoritative clinical guidelines, as well as of mechanisms to ensure compliance with them reduces the clinical decision making freedom of individual doctors. This mostly affects doctors working within the NHS, but also to some extent those who work in private practice. Although doctors still have the same degree of formal clinical freedom, their actual freedom is constrained. This may be especially true in GP practice as discussed by Laing.91 This could be taken to imply that deference to doctors has decreased, but that would be too hasty. What has happened is that the object of deference has shifted from the individual medical practitioner to a subset of the medical profession.
NICE does take resources into account when developing Guidelines and Quality Standards and it does have patient representation on its committees, but the key inputs to guideline development is evidence in relation to health outcomes and clinical expert opinion.92 A number of NICE clinical guidelines have been claimed to be unrealistically ambitious in their requirements, precisely because they are written by a highly selected subset of experts.93
90 The Ian Paterson case illustrates that there may still be some residual deference towards individual, senior doctors within clinical teams, but his case is probably a rather exceptional exception.
91 JD Laing, ‘Delivering Informed Consent Post-Montgomery: Implications for Medical Practice and Professionalism’ (2017) 33(2) Journal of Professional Negligence, 128-152
92 NICE. PMG20 - Developing NICE Guidelines: The Manual,
<https://www.nice.org.uk/process/pmg20/chapter/introduction-and-overview#key-principles-for-developing- guidelines> <http://www.nhs.uk/NHSEngland/patient-choice/Pages/your-rights-to-choice.aspx> accessed 20 February 2018
93 S Parr, and S May, ‘Do Musculoskeletal Physiotherapists Believe the NICE Guidelines for the Management of Non-Specific LBP Are Practical And Relevant to their Practice? A Cross Sectional Survey’ (2014) 100(3) Physiotherapy 235-241; A Drummond, and D Wade, ‘National Institute for Health and Care Excellence Stroke Rehabilitation Guidance–Is It Useful, Usable, And Based on Best Evidence?’ (2014) 28(6) Clinical
Rehabilitation 523-529; K Matyka, and S Malik, ‘Management of the Obese Child—Application of NICE guidelines 2006’ (2008) 8(4) The British Journal of Diabetes & Vascular Disease 178-182.
23 So, the rhetoric of ‘choice’ in health care policy making seems to indicate deference towards the patient/consumer in the sense of a desire to facilitate the exercise of their autonomy. But, choice is most often constrained choice, and while the constraints may be set by the policy- maker it is often on the advice of health care professionals, and thus is an example of a framework in which a traditional form of deference to the medical profession is embedded.
A second area in which policy approaches entrench deference to the medical profession is in the medicalisation of social problems. This may be expedient for policy makers since it provides policy making with a sheen of neutrality and makes the problems and their solutions seemingly non-political.
Direct funding of public health initiatives through the NHS has been decreasing for some years and in 2013 in England the main responsibility for public health services provision moved from the NHS to local councils, a move which has been followed by year on year cuts in expenditure.94 Traditional public health services such as health promotion campaigns or the monitoring of public health threats are thus in decline. However, at the overarching policy level we have witnessed an increased medicalisation of social problems that are associated with bad health outcomes, but which in many cases are caused by mainly social factors, being re-defined as medical problems. This has a number of advantages for political decision
makers. Social problems are almost by definition also political problems and although political decision makers may claim that there is an objective and not politically influenced solution in relation to a particular social problem they are very unlikely to be believed by the public. However, if the same problem becomes redefined as a medical problem, it can more successfully be claimed in the public debate that there is an objective, medical solution to the
94 D Buck, ‘Local government public health budgets: a time for turning?’
<https://www.kingsfund.org.uk/blog/2016/08/local-government-public-health-budgets>
<http://www.nhs.uk/NHSEngland/patient-choice/Pages/your-rights-to-choice.aspx> accessed 20 February 2018
24 problem and that that solution is not political. This works especially well in those cases where a particular solution is supported not only by the selected medical experts but by the medical profession as a whole.
Smoking, alcohol consumption, malnutrition and vehicle pollution control are among the many social problems that have been re-defined as medical problems.95 Any of these could form the basis for a case study of how successful medicalisation of a social problem at the same time relies on the general social prestige of the medical profession as an objective arbiter of medical truth, and carves out a specific new domain of deference to the profession.
Within the scope of this paper we are unable to analyse more than one of these medicalisation cases, and we have chosen to focus on the still ongoing medicalisation of transport policy.
Until relatively recently transport policy in relation to private cars was primarily driven by two sets of considerations, i.e. the need to reduce CO2 emissions derived from more general climate change considerations, and the need to reduce congestion in inner city areas. These two sets of considerations led to policies aimed at promoting the use of fuel efficient cars, and policies aimed at increasing the use of public transport.96 Medical considerations were not central to policy making, although they were not completely absent, for instance in relation to the public health benefits flowing from increased bicycle use.97 The responsibility for this policy area was traditionally shared between the Department of Transport and the Department of Environment, Food and Rural Affairs (DEFRA).
95 It is worth noting in passing that the Court of Appeal supported explicit, official paternalism in relation to smoking in a case involving a non-smoking policy at Rampton Hospital, R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795
96 D Bonilla, ‘Fuel demand on UK roads and dieselisation of fuel economy’ Energy Policy (2009) 37(10) 3769- 3778; EA Mazzi and H Dowlatabadi, ‘Air Quality Impacts of Climate Mitigation: UK Policy and Passenger Vehicle Choice’ (2007) 41(2) Environmental Science and Technology 387-392
97 S Fraser and K Lock, ‘Cycling for Transport and Public Health: A Systematic Review of the Effect of the Environment on Cycling’ (2011) 21(6) European Journal of Public Health 738-743; J Woodcock et al. ‘Health Effects of the London Bicycle Sharing System: Health Impact Modelling Study’ (2014) 348 BMJ g425
25 However, in a very short space of time this policy area has become extensively medicalised and the focus has moved from climate change and congestion to the public health effects of nitrogen dioxide emissions and particulate matter, especially from the very same diesel cars that the government previously promoted due to their fuel efficiency and low COs
emissions.98 This change in policy focus has partly been driven by the Government’s recurring defeats in the Courts in a number of cases relating to non-compliance with Article 13 ‘Limit values and alert thresholds for the protection of human health’ of the EU Air Quality Directive (2008/50/EC).99 The Government lost in the Supreme Court in 2013, but certain questions were remitted to the ECJ.100 After the ECJ ruling in 2014 the case came back to the Supreme Court and DEFRA was ordered to issue new and adequate air quality plans.101 Since 2015 air quality plans proposed by DEFRA have twice been found by the High Court not to comply with the Directive. This has increased the focus on the area where the UK is non-compliant, but has also led to medicalisation because ‘the protection of human health’ as stated in Article 13 of the Directive has become a Court imposed core policy objective. The evidence and experts which were previously relevant have now become marginalised and been replaced by those from the medical arena.
The medicalisation of transport policy reached a current acme when the National Institute for Health and Care Excellence (NICE) published ‘Air pollution: outdoor air quality and health - NICE guideline [NG70]’ in June 2017. This guideline which in addition to direct transport
98 Department for Environment Food & Rural Affairs and Department for Transport, ‘Clean Air Zone Framework- Principles for setting up Clean Air Zones in England’ (2017)
99 Clientearth, R (On the Application Of) v Secretary of State for Environment, Food And Rural Affairs [2017]
EWHC B12 (Admin); ClientEarth (No.2) v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin); ClientEarth, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28
100 ClientEarth, R (on the application of) v The Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25
101 Clientearth, R (On the Application Of) v Secretary of State for Environment, Food And Rural Affairs [2014]
C-404/13
26 policy also covers areas such as local planning and development management is not primarily directed at health care professionals, but at:
‘Local authority staff working in: planning, local air quality management and public health, including environmental health staff working in transport and highways authorities
Local government elected members Employers
Healthcare professionals, people working in the voluntary sector, non-governmental organisations and education
Members of the public’102
NICE which, as its name implies, is an organisation for ‘health and care’ now speaks authoritatively and directly on traffic policy and instructs a new audience far removed from the health care area and its usual audience of health care professionals or managers. The guideline was developed through the standard NICE guideline development process by a committee dominated by public health specialists and epidemiologists. In an interview about the guideline for BBC Radio 4, Professor Paul Cosford, Director of Public Health England, said that the guideline was a ‘distillation of best evidence’.103 But note that best evidence for transport policy is now implicitly defined as medical evidence. This means that medical experts and the medical profession have gained power over an area of policy making that previously was the domain of other experts and professions. The area of deference to the medical profession has increased.
102 <https://www.nice.org.uk/guidance/ng70> accessed 27 October 2017
103 <http://www.bbc.co.uk/news/health-40431351> accessed 27 October 2017
27 Analysing whether or not the medicalisation of transport policy is a good or a bad thing is outside the scope of the current paper. It might be a good development if it brings new and important perspectives to the table, or it might be a bad development if the medicalisation crowds out other views. For our purposes it is sufficient that it demonstrates an area of policy making where deference to the medical profession is not waning, but increasing very
significantly.
DEFERENCE IN PROFESSIONAL REGULATION
One of the traditional ways in which society and the state showed deference towards the medical profession was by allowing it to be self-regulating. The current regulator of the medical profession, the General Medical Council (GMC) was established by law in the 1858 Medical Act as the General Council of Medical Education and Registration. The state has evinced an interest in the regulation of medicine since the statute of 1511-12 (commonly known as ‘The Quacks’ Charter’) but the establishment of the GMC marks the start of the current regulatory regime bringing together the regulation of different kinds of medical practitioners that had previously been regulated by a diverse set of bodies. The GMC was in 1858 firmly in the hand of the profession. The Council only had professional members and it had wide self-governing powers. The first lay member of the GMC was appointed by the Privy Council in 1926 and by 2003 the proportion of lay members had increased to 40%
following changes instituted by the GMC itself in 2001.104
104 M Stacey, ‘Regulating British Medicine; the General Medical Council’ (Chichester: Wiley 1992); D Irvine
‘A Short History of the General Medical Council’ (2006) 40 Medical Education 202–211; General Medical Council, ‘Effective Inclusive and Accountable: Reform of the GMC's Constitution and Governance’ (London:
GMC 2001)
28 In 2008 this all changed as a result of the combined impact of a number of medical scandals, including Bristol, Alder Hey and Shipman105 leading to a general public perception that the GMC was an ineffective regulator that protected doctors more than it protected patients and the public. This view pertained despite the strongly defended official claim that the core ethos and raison d’etre of the GMC is the protection of patients and the public, as specified in the The Medical Act 1983 (Amendment) Order 2002 that inserted the following section into the 1983 Act: ‘(1A) The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.’ The General Medical Council (Constitution) Order 2008 specifies parity between professional and lay members on the Council, and this has been carried forward by the General Medical Council (Constitution) (Amendment) Order 2012 which changed the number of members of the Council but not the principle of parity between professional and lay members.
In 2003 the GMC itself also became subject to an overarching governance body, the Council for Healthcare Regulatory Excellence (CHRE), which was established under the National Health Service Reform and Health Care Professions Act 2002. The CHRE initially had limited powers and was not very interventionist, but its audit powers were increased by the Health and Social Care Act 2008. In 2012 the Health and Social Care Act abolished the CHRE and established the Professional Standards Authority for Health and Social Care (PSA). The PSA oversees the activities of a number of different professional regulatory bodies in the health and social care area, and has extensive powers to audit and review the functions and decisions of its subordinate regulators as well as powers to direct these regulators to make rules. It is specifically required to report annually to Parliament on the
105 M Redfern, ‘The Royal Liverpool Children’s Inquiry Report’ (London: The Stationery Office, 2001); I Kennedy, ‘The Report of the Public Inquiry into Children's Heart Surgery at the Bristol Royal Infirmary 1984- 1995’ (London: The Stationery Office, 2001); J Smith, ‘The Shipman Inquiry—Fifth Report: Safeguarding Patients: Lessons from the Past—Proposals for the Future’ (London: The Stationery Office, 2004)
