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The Sociology of Quality and Accountability Edited by Robert Dingwall Introduction One of the key challenges identified by the Francis Inquiries is that of ensuring accountability for standards of care in NHS-type health systems, where organizational control is shared between managerial and professional lines of authority. . Although that interaction represents a clear systemic risk in such environments, it is present to a greater or lesser degree in any setting where professional work has to be accomplished within a complex structure of ancillary and support services that the profession does not fully control. Francis concluded that the failures at Mid-Staffs Hospital Trust reflected a failure of shared governance. They included managerial and professional tolerance of poor standards, failures of communication between agencies, assumptions that performance monitoring and corrective interventions were somebody else’s responsibility, and a lack of appreciation of the extent to which restructuring had compromised organizational memory. We might summarize this as a routine working assumption that quality was someone else’s problem. The proposed remedies included the development of a common culture of putting the patient first, reflected in the creation of a set of professionally-endorsed and evidence-based standards that would be relentlessly policed by an external regulator. Individuals and organizations would be held equally to account: those found to be unfit would be excluded from practice to protect the public. This would include senior managers, whose personal accountability should match that of the members of licensed health professions. Francis 1 emphasises that his priority is culture rather than system change. Demands for system change are understandable but it is not systems that ensure acceptable treatment of each patient. Overall, Francis mostly adopts contemporary thinking about best practice in quality management and high-reliability organizations. This rests on employee engagement and empowerment and stresses internal openness - learning from errors and failures rather than assigning blame and punishment. Quality is everybody’s business. The UK Government response (2013), however, relies heavily on the theories of New Public Management about the importance of sanctions and penalties, including criminal prosecutions for individual or organizational failures due to reckless misjudgements. Inspectorate is piled upon inspectorate with Trust Boards and Clinical Commissioning Groups policed by the Care Quality Commission, Monitor and NHS England. Professional regulation is to be consolidated and fast-tracked to bring cases to a conclusion within 12 months, while the occupations covered are subject to continuous revalidation. All licences to practice will, in effect, be temporary and conditional. Managers will acquire criminal records if, as the ‘controlling minds’ of the organization, they collude with malpractice by care providers. Some of this is necessarily symbolic. In the law and society world, we talk about this as the Dangerous Dogs Act response, where the political urgency of being seen to ‘do something’ results in the hasty passage of poorly-drafted legislation that is either unworkable or never used. The legal standard of recklessness, for example, is so stringent that it is hard to see successful prosecutions ever being mounted. Nevertheless, the offence is placed on the books as a potential threat to hapless chief executives. It might also be noted that the Government response is set within the context of yet another of the reorganizations criticized by Francis for their disruption of organizational cultures and institutional memories. 2 Two questions immediately come to mind: does increased complexity actually contribute to the ‘clear and well-functioning system of accountability (para 51)’ claimed by the government; and how effective is a regime based on sanctions rather than on incentives. Accountability In the classic market beloved of economists, accountability is an individual matter. If a transaction does not deliver what a buyer expects, then he or she has immediate redress against the seller. When the village baker sells you a mouldy loaf of bread, you go back to the shop and ask for a replacement or a refund. The buyer has perfect knowledge of whether the bread is fit to eat, which is signalled by the price: yesterday’s loaf sells at a discount to reflect the risk of mould. If you have paid full price and the baker disputes responsibility, you might produce a weapon and insist on reparations. However, this is not generally favoured as an option. It used to be thought that a distinctive feature of modern societies was the creation of a state monopoly of legitimate violence, with the right to sanction anyone else who used violence for private ends. In fact, however, violence is quite rare as a means of settling disputes within communities even in traditional societies. Most known human societies seem to provide some institutional means for resolving disputes in a peaceful fashion, commonly by the shaming of the offending party, the suspension of their participation in important community activities or other forms of reputational damage (Roberts 2013). This is part of the framework of law or law-like institutions that Durkheim saw as fundamental to effective markets but which could not be generated by them (Lukes and Scull 2013). 3 From the victim’s perspective, however, such institutions create what is commonly described as a principal/agent problem (Gailmard 2014). Victims (principals) have to convince third parties (agents), whether an individual or a group licensed to act on behalf of the community, that their complaint is justified and that the alleged offender is indeed responsible. Agents may have other interests of their own. The village baker may have sold you a mouldy loaf but she provides free bread to the local specialist in dispute resolution. However, agents are also a buffer against unreasonable or unjust complaints. Is your dispute with the baker really motivated by the poor quality of her bread or her son’s thefts from your orchard? Is your demand to be compensated by getting free bread for a month, really proportionate to a oneoff failure that has not been reported by anyone else? Dispute resolution processes are typically designed to dampen passions and to provoke victims to reflect on whether they might be overreacting relative to the sentiments of the wider community. This is fundamental to their role in the restoration of an order that has been disrupted by the dispute. Legal Mechanisms Disputes about health care are particularly tricky because of the imperfect and asymmetric nature of information about what to expect as an outcome. There is a big difference between accountability for a material product and accountability for the provision of a service, where the outcome lies in the future, is uncertain and causation is difficult to establish. I know when I have a mouldy loaf of bread: it is much harder to establish that I have received poor quality medical treatment. This is apparent even in the earliest reported English legal cases (Dingwall and Fenn 1992). These were brought under the common law of tort, which, very briefly, holds that members of a society have a duty of care towards each other. Neglect of that duty, leading to another being harmed, creates a liability to pay compensation intended to restore 4 the victim, as far as possible, to their previous condition. This involves two tests: a test of causation, that the defendant’s action, or inaction, led to the harm; and a test of reasonableness, that the defendant did not exercise an appropriate level of care to avoid causing the harm. In the case of Forest v Harowe in 1425, for example, a surgeon was exonerated because the jury held that the poor outcome was caused either by the patient’s failure to comply with directions or by the nature of the original injury or by an exogenous influence (in this case, the phase of the moon). These are exactly the same questions that would arise in a contemporary case. The jury in Forest v Harowe was specially constituted to include other practitioners so the issue of the reasonable standard of care was dealt with in a different manner than it would be today but the principle was acknowledged. The patient was unable to prove causation and lost the case. Nevertheless, by 1470-71, it was established that ‘if a man undertakes to cure me of a certain disease, and he gives me medicine that makes me worse, I shall have action against him’ (Choke J, quoted in Holdsworth 1942: VIII; 387). Although tort litigation is a long-established system of accountability, it has been increasingly criticised for its inequities. Causation can be hard to establish so that ‘deserving’ cases fail. Like needs receive unlike compensation. Egregious medical errors lead to private settlements, while unlucky judgements in finely-balanced situations are exposed to the full glare of tabloid publicity. However, the tort system does offer victims, or their next of kin, opportunities for psychological redress through the public exposure of wrongdoing – if the case does get to court. It can prompt an inquiry in the open setting of a trial that can be a general source of information to the community about how a risk was managed. Finally, the tort system can create incentives for organizations to invest in safety in order to avoid the financial and reputational costs of litigation. Some of the same features apply to other forms 5 of legal investigation, like coroners’ inquests or the criminalization of negligent errors, resulting in police investigations and prosecutions. All of these legal approaches, however, share the disadvantage of acting after the event, when damage has already occurred, and of addressing the problems in a highly individualistic manner. In 2001, for example, a patient died in the Queens Medical Centre, Nottingham as a result of an intrathecal injection of Vincristine, a cancer treatment that should only ever be administered intravenously. One of the doctors pleaded guilty to manslaughter, was imprisoned and ultimately suspended from practice. However, the Department of Health’s inquiry, by a behavioural safety expert, Brian Toft, (http://www.who.int/patientsafety/news/Queens%20Medical%20Centre%20report%20%28T oft%29.pdf) showed that the error was the result of a complex system failure, for which the doctor was at best partially responsible. There had been 13 similar events in the previous 15 years, but these had never been aggregated in a way that promoted learning or allocated responsibility for improving the system elements that had failed. Professional Licencing A partial alternative to litigation has been the development of professional licensing or certification. This is intended to be proactive by restricting practice (licensing), or signalling the achievement of a quality threshold (certification), to those who have demonstrated their competence in the professional art. Again, this has a very ancient history. The English Royal College of Physicians was founded in 1512 by an Act of Parliament, which justified the development in these terms: 6 The science and cunning of physic and surgery…is daily within this realm exercised by a great multitude of ignorant persons…[who] boldly and accustomably have taken upon themselves great cures, and things of great difficulty, in which they partly use sorcery and witchcraft, partly apply such medicine unto the disease as to be very noious, and nothing meet thereof, to the high displeasure of God great infamy to the faculty and the grievous hurt, damage and destruction of many of the King’s liege people (3 Henry VIII, c11) This is not the place to recount the chequered history of the English medical profession, and the eventual creation of a unified body as a result of state action in the mid-19th century. Analytically, however, we can note the difficulty of defining the scope of medical practice in such a way as to create an effective monopoly: the UK is better described as having a system of certification that is reinforced by the creation of legal privileges around aspects of the medical profession’s work. Only registered practitioners can be employed in certain roles or perform certain functions, although these reserved areas have been much blurred in recent years by, for example the loosening of rules on prescribing. We can note the problematic assumption that the acquisition of a licence or certificate of competence continues to be a valid signal of quality throughout a professional career. The requirement for continuing professional development as a condition of maintaining recognition assumes a carryover from attendance at courses or a clear ability for others to assess whether practical performance is satisfactory. As we saw in the case of tort, a causal relationship between practice and outcome is not easily established. Does a surgeon have a high death rate because she is incompetent or because she is willing to offer hope in cases that her peers think are poor risks? Peer review of ongoing practice does not necessarily escape the long-established charge against post hoc professional discipline – that the profession is more concerned to protect its members and its collective reputation than to protect ‘the King’s liege people’. 7 Citizen control Another option might be greater citizen involvement. The problem here is the difficulty of determining which citizens should be involved and on what basis. There are two fundamental issues. The first, which we have already met, is the asymmetry of knowledge between professionals and citizens. Again most citizens are not well-placed to determine whether they have been well-treated but unfortunate in the outcome or when a bad outcome is the result of poor treatment. Harold Shipman, the mass murderer GP, was very popular with his patients because of his pleasant and accommodating manner. As medical sociologists have long recognized, chronic patients may acquire a degree of expertise in the management of their own condition that allows them to make some assessment of their treatment. Acute patients are less privileged. The rise of online information sites has only helped to a limited extent because patients still have the problem of identifying authoritative knowledge and evaluating its relevance to their own symptoms and experience. It is not so very different from reading an old-style medical dictionary and being convinced that you suffer from every exotic disease in the book. The second issue is the asymmetry of interest between citizens. Medical sociologists have rather neglected this since Talcott Parson’s analysis of the sick role, which is fundamentally about how claims to dependency are adjudicated. Whether your health system is tax funded or insurance funded, the care of the sick is constrained by the willingness of the well to pay for it (Dingwall 2016). If, as health economists propose, the demand for health care is potentially infinite, an excessive reliance on user involvement risks generating demands that the well are unable or unwilling to pay for. Tragic stories in tabloid media about treatment 8 rationing are the exact moral equivalent of ‘shroud-waving’, claims made by doctors, to protect their own interests, that patients will die unless favoured resources are provided. ‘Patient and public involvement’ is not a panacea. The idea of elected citizen boards to control or supervise the system brings a different set of problems. In England, we have started to elect police and crime commissioners to supervise the various local police services. Almost without exception, candidates promise more uniformed officers on the street, although this is one of the least efficient ways of preventing crime. It addresses citizens’ fears not their risks. What would be the equivalent for health care? The pre-NHS experience with local government provision of health care suggested that politicians like to build things rather than to invest in people. The result was a costly proliferation of hospitals and beds that the NHS has struggled to rationalize. Would a ‘health and social care commissioner’ find it possible to get elected without pledging to retain every hospital bed in the area? Do we want to return to this when the demands of the future are likely to be in the intangible, and unglamorous, provision of primary and domiciliary care? This Virtual Special Issue The contributions collected in this VSI do not solve the problem of accountability. Indeed the problem is unlikely to be solvable in any straightforward sense. It is a question of balancing the consequences of different possible institutional systems, each of which is imperfect in its own way. What they can do, however, is to illuminate the trade-offs that are involved and to help us debate our way towards the least imperfect system that we can contrive. 9 Sociology of Health & Illness has been carrying articles on medical accountability since the 1980s, when the first moral panic about claims for medical negligence broke out in the UK. Although there were real financial difficulties for the medical defence societies, who acted as a type of mutual insurance organization for the medical profession, much of this panic was a rather naïve read-across from the US experience, where so-called malpractice crises are a recurrent feature of insurance markets. In the UK, it was not widely recognized that negligence claims were increasing against most professions although each thought its problems were unique. This predates the rise of New Public Management and its assault on trust in professions. The drivers were probably shifts in claims consciousness among victims and easier access to legal services, rather than changes in professional behaviour or political context. Nevertheless, seeing this as a unique problem led many leaders of the medical profession to look to the USA for possible explanations and models for action. Annandale (1989) discusses some of these. She examines the way in which US physicians had come to focus on the doctor/patient relationship as a source of problems. Improving this would prevent the breakdown of trust that led to litigation. Particular attention was given to identifying ‘suit-prone’ patients, whose psychological characteristics marked them out as potential litigants. If doctors could satisfy their patients, at least in those areas of practice that patients felt competent to evaluate, then they would be less likely to sue. As Annandale points out, this strategy leaves the profession and its practice largely intact and individualizes the problems that arise. ‘Bad apples’ meet ‘difficult’ patients. With hindsight, we might also note the way in which this is potentially an argument against the rise of more corporate types of medical practice that limit the discretion and autonomy of physicians to personalize the care offered – what Strong (2006) called ‘bureaucratic’ medicine. We might also note that this approach to managing treatment failures may also have the consequence of denying 10 patients necessary economic resources in a country with limited social security provision. In the US, tort or negligence litigation is a parallel system of social insurance that, albeit imperfectly, fills gaps left by public systems. This is worth remembering in any discussion of drivers of increases in UK claim rates. The problems of relying on the doctor/patient relationship as an individual source of accountability are explored further by Allsopp and Mulcahy (1998). In the UK, patients have the option of making formal complaints through NHS mechanisms as an alternative to litigation, particularly where there are no financial losses or these are trivial – replacing mislaid clothing or spectacles, for example. Allsopp and Mulcahy show how the moral complexity of claiming obstructs efficient resolution of these disputes. For doctors, beneficence lies at the heart of their professional identity. In the UK, admission to medical school has for some generations required at least lip service to a desire to serve the public interest and the welfare of humankind: expressing a goal of becoming wealthy tends to be considered as a disqualification by selectors, although, of course, most UK doctors are in the top 5 per cent of the income distribution and a handful are genuinely rich. Patient complaints challenge this in a very fundamental way. One response, echoing Annandale’s discussion of ‘suit-prone’ patients, is to see complainants as somehow morally deficient. They do not play the role assigned to them in the Parsonian model of the sick role and must, hence, be considered as socially deviant. This combination stands in the way of the straightforward approach to complaints that may be taken by many commercial organizations, accepting that minor troubles and failures will always occur, that these yield useful quality information, and that they can generally be disposed of with a prompt and generous response. Generosity may be more difficult when it is taxpayers’ money being spent but dispute resolution at this level does not involve serious challenges to the moral identity of either party. 11 Sociologists of law often talk about the expression of grievances as a process of ‘naming, blaming and claiming’: naming an experience as unsatisfactory, blaming some person or organization for that experience, and only then bringing a claim for redress (Felstiner et al 1980). A group of papers in this collection have pushed upstream to investigate the ‘naming and blaming’ process, and the way in which this influences claims. Carmel (1988), Britten (1991), Mulcahy and Tritter (1998), Edwards et al (2004) and Funk et al. (2012) collectively deepen our understanding of just what leads patients to articulate their grievances. Carmel shows that this is a function of characteristics of both the patient and the organizational environment within which they are treated. Although duration of exposure to the environment (length of stay) is the most significant variable, this is partly also a proxy for medical versus surgical wards. Mulcahy and Tritter, Edwards et al. and Funk et al. all document different aspects of the complexity of the naming stage of the process of expressing a grievance. There is a significant difference between the findings of survey work, which generally finds high levels of patient satisfaction, and of qualitative work in interviews and focus groups, which finds much more evidence of dissatisfaction. It is not clear that the focus group studies fully take account of the way in which these settings may lead to competition between participants and the production of accounts that inflate patient dissatisfaction, a problem that was identified by Stimson and Webb (1975) over forty years ago. Nevertheless, the discrepancy is a consistent finding that requires some explanation. These studies show that the naming process takes place over time, focusses on different aspects of the patient experience at different points and does not form a simple binary opposition between what constitutes satisfaction and dissatisfaction. Rather than taking snapshots using simple metrics of satisfaction, healthcare organizations may learn more from bottom-up approaches that enlist patients in the provision of ‘constructive feedback’ than asking them to express 12 dissatisfaction. This relates to some of the issues about moral identity discussed earlier: patients may be reluctant to present themselves as ungracious or ungrateful but may be willing to serve as partners in service improvement. Britten (1991) contributes some thoughts on the likely response to the idea of greater partnership in documenting consultant views on sharing records with patients. She finds a division between more technocratic physicians, who are generally opposed, and more psychosocial physicians, who are generally in favour. In her view, there is a long-term movement in the latter direction. This is not wholly borne out by the experiences of Rier (2000) and Blaxter (2009), suggesting that the possibilities of partnership may vary a good deal depending on the nature of the patient’s condition and their engagement with the health system. Blaxter also points to the way in which technocratic drivers, such as Evidence Based Medicine (EBM), have come to constrain the discretion of physicians and their ability to personalize their relationships with patients. This theme is pursued by Germov (2005), Brown (2008) and Hillman (2013) who all question the ways in which the introduction of audit culture and performance management have led physicians to focus on compliance with organizational requirements rather than responding to patients as individuals. The strengthening of accountability through bureaucratic means comes at the expense of patient dignity and trust in the commitment of the organization and its agents to their health and well-being. Instrumental or economic rationality prevails over the less tangible affective dimensions of doctor/patient relationships. The limitations of bureaucratic accountability are explored in two directions by the authors collected here. On one hand, there is the rise of consumer accountability, discussed 13 particularly by Allsopp et al (2004) and Martin and Finn (2011). Allsopp et al note the rise of consumerist groups in health care, which goes back to the social movements of the 1960s and the demand for civil recognition by a wide range of previously excluded or marginalized groups. These movements have been extensively documented by medical sociologists and widely seen as having great potential for the reconstruction of health systems. Martin and Finn, however, are more sceptical. By the time that they are writing, it has become much clearer that these groups are also vulnerable to co-option in ways that repair the legitimacy of organizations that are under threat rather than bringing about significant change. These groups can become conservative stakeholders with a strong investment in the status quo rather than in radical service reform. An example additional to those provided by Martin and Finn might be the way in which consumer groups have been corrupted by Big Pharma as a way of getting around European bans on direct-to-consumer advertising for new pharmaceuticals. They are locked into drug-centred approaches to medicine and risk becoming sock puppets in lobbying for expensive new therapies that bring marginal benefit, according to technocratic criteria. In effect, this is what Parsons and Fox warned against in their concern that the sick should be prevented from forming ‘solidary communities’ that would challenge the ways in which the well chose to manage their deviant status. If consumer accountability has problems, one alternative might be some form of democratic accountability, as discussed by Martin (2008) and Phillips and Green (2015). It is certainly arguable that some of the presentational problems experienced by the National Health Service in parts of the United Kingdom relate to the fact that no-one has a local political interest in boosting it. The decision in 1948 to centralize economic and bureaucratic authority may have had a political logic in bringing the medical profession and the Treasury onside. However, it is clear that one consequence has been that localities can then only mobilize around perceived 14 imperfections rather than, for example, the achievements of their municipal health departments or the new buildings provided out of local taxation for hospitals, health centres and other services. In this respect at least, the NHS is always doomed to failure. However, as both papers note, there is a real tension between democratic accountability and evidencebased service design and delivery. Communities tend to like things the way they are even when the results are inefficient, ineffective and wasteful. To invert Aneurin Bevan’s celebrated quote, service users would often prefer to expire in a gush of warm sympathy than survive in a climate of efficient, if cold, altruism. Local governments are notoriously more vulnerable to capture by special interests. The concern of citizens for the fair and ethical use of taxation can easily be displaced by the demands of consumers that their preferences be satisfied right here and right now. The most recent papers, then, by Moffatt (2014) and by Aveling et al (2016) start to move in a different direction, albeit one prefigured by Freidson (2001: cf. Dingwall 2006) in his final writings. Where medical sociologists had done much to erode the trust in all professions from the 1960s through to the end of the twentieth century, Freidson began to ask whether this had gone too far. Were there virtues in professionalism as the patient’s ally against unresponsive bureaucracies? These papers develop those thoughts, in a way similar to thinking in respect of other professions, to consider whether more may be achieved by the deliberate cultivation of virtue. Rather than automatically treating professionals as knaves, could we revive the courtly vision of the knights in a way suited to modern conditions? Neither paper argued for an unconditional alliance between doctors and patients – patient preferences must always be constrained by considerations of cost and benefit. However, we should cease to assume that doctors would only take account of these if they were bullied into doing so by some scheme of performance management. Could we educate doctors to just do the right thing? This is not 15 a straightforward question – we have also known since the 1960s that virtuous practice is highly sensitive to organizational context. However, the results of the New Public Management mistrust of professions, exemplified by the government response to Francis, have been vast empires of quality assurance and petty tyrannies (Timmins 2016). These have consumed resources without leading to noticeable improvements, as Francis chronicles. Maybe there is something to be said for considering alternatives. Medical sociologists certainly have a contribution to make to exploring these. We bring more than half a century of thoughtful work on professions, organizations and patients that give us a solid basis for thinking about the complexity of the problems and the naiveté of many supposedly evidence-based panaceas. Ever since Emile Durkheim (Lukes and Scull 2013), and before him Adam Smith (Muller 1993), we have known that markets rest on moral and interactional foundations that they cannot themselves generate. There is, though, one large blind spot, which stems from our neglect of the question posed by Talcott Parsons in his original analysis of illness as social deviance, namely what are the moral boundaries to the claims for support that can be made on the productive efforts of the well. We have analysed the worlds of professionals, managers and service users in great depth. However, we still need more thinking about the accountability of all of these groups where third parties actually pay the bills, whether in a tax-funded national health service, a social insurance system or, indeed, a private insurance system. How do we set, and justify, trade-offs between choice, quality and resources in the face of the shrouds waved jointly by both physicians and service users? Can we really rely on an education in virtue to restrain doctors when faced with the immediate challenge of the patient whose desires can only be met at enormous cost? 16 Francis found a situation in Mid-Staffs that was clearly unacceptable, well below any floor that should exist for health care in a developed country. However, understanding what is unacceptable does not necessarily help us to define what might be acceptable. Many medical sociologists have an instinctive sympathy with the position of patients or service users, and they have often made an important contribution in giving voice to these groups. Does this lead us to be less helpful in spelling out the limits to fulfilling patient and professional wishes? What can we contribute to designing modes of governance that can hold health care organizations to account for the compromises they must necessarily choose to make, while defending them against the unrealistic, sectional claims that they inevitably face. What are the mechanisms for defining ‘good enough’ care that is proportionate to the scale of resources that well people are prepared to make available to the health care system? How can we balance a proper managerial concern for efficiency and effectiveness with the aspirations of professionals and the wishes of patients? References Dingwall, R. (2016) Reductionism, holism, and consumerism: the patient in contemporary medicine. Pp.110-29 in Davis, J.E. and González, A. M., (eds,) To Fix or To Heal: Patient Care, Public Health and the Limits of Biomedicine. New York: New York University Press. Dingwall, R. (2006) The enduring relevance of professional dominance, Knowledge, Work and Society 4, 2, 77-98. Dingwall, R. and Fenn, P. (1992) Introduction. Pp. 1-10 in Dingwall, R. and Fenn, P. Quality and Regulation in Health Care. London: Routledge. Felstiner, W. L., Abel, R. L., and Sarat, A. (1980). The emergence and transformation of disputes: naming, blaming, claiming... 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