Research | Journal Articles

This paper considers whether it would be legally and practically feasible to devise a regulatory regime pursuant to which a suitably constituted regulatory authority could grant advance authorisation for the provision of assistance to another person who sought to end her own life, while maintaining society’s clear and strongly held commitment to the moral and legal wrongfulness of intentional killing. It draws primarily on regulatory theory to suggest that, although there are significant challenges associated with designing and implementing a legitimate, effective regulatory regime, these challenges are not insurmountable.

The power and precision that our technological knowledge makes possible has been accompanied by an increasing interest in the use of ‘design’ as an instrument for promoting social policy goals. This development is unsurprising, given that the benefits which such technological applications offer are considerable: holding out the prospect of improved health, longevity, safety, security, efficiency and productivity. Why bother with human station attendants to ensure that passengers hold valid tickets when a computer can sell tickets and authorise entry onto station platforms efficiently, without error, or the need to break for lunch? Yet across a wide and varied range of social contexts, commentators from a range of disciplinary orientations (including criminology, bioethics and ICT law) have raised concerns about the legitimacy of employing technological means for promoting specific social purposes.

What unites these apparently disparate critiques is a concern that deliberate attempts to shape social outcomes through technological means (whether by individuals, the state or commercial actors) could seriously destabilise our moral and social foundations. Hence an important challenge for any society committed to maintaining the freedom of individuals to pursue their own view of the right and the good (subject to appropriate constraints) is to identify whether (and if so, on what conditions) technological measures may be legitimately employed in pursuit of social goals. This paper makes small steps towards meeting this challenge by examining the use of ‘design’ as an instrument of regulation. It seeks to provoke reflection on whether it is possible for an autonomy-respecting society to reap the benefits of design-based forms of regulation without destroying the social foundations upon which moral freedom and responsibility rests.

This article identifies the role played by a series of medical scandals in the UK, occurring from the mid-1990s onwards, in ending a collegial model of self-regulation of the medical profession that had endured for 150 years. The state’s original motive in endorsing professional self-regulation was to resolve the principal-agent problem inherent in the doctor-patient relationship. The profession, in return for its self-regulating privileges, undertook to act as a reliable guarantor for the competence and conduct of each of its members. Though sufficient to ensure that most doctors were “good”, the collegial model adopted by the profession left it fatally vulnerable to the problem of “bad apples”: those unwilling, incapable or indifferent to delivering on their professional commitments and who betrayed the trust of both patients and peers. Weak administrative systems in the NHS failed to compensate for the defects of the collegium in controlling these individuals. The scandals both provoked and legitimised erosion of the profession’s self-regulatory power. Though its vulnerability to bad apples had been present since the founding of the 19th century profession, it was the convergence of social and political conditions at a particular historical moment that transformed the scandals into an unstoppable imperative for reform. Huge public anger, the voice permitted to a coalition of critics, shifts in social attitudes, the opportunity presented for imposing standards for accountability, and the increasing ascendancy of pro-interventionist managerialist and political agendas from the early 1990s onwards were all implicated in the response made to scandals and the shape the reforms took. Scandals need to be understood not as simple determinants of change, but as one performative element in a constellation of socially contingent forces and contexts. The new rebalancing of the “countervailing powers” has dislodged the profession as the senior partner in the regulation of doctors, but may introduce new risks. (C) 2011 Elsevier Ltd. All rights reserved.

The optimal choice of regulatory approach for securing patient safety is an important problem. In this review article, we show how insights from the field of regulatory studies can provide a conceptual apparatus for analysis of important problems in the regulation of medicine and healthcare. Design-based regulation operates through technical constraints that are self-executing. Technology, by concretising rules about proper behaviour and conduct, not only functions as a regulatory instrument, but may also encode particular values and versions of rationality. As debates in the broader area of “code” or “design”-based regulation, including the crime prevention context have highlighted, design-based approaches may have significant social, political and ethical implications. Though design-based regulation can be an attractive solution where there is widespread agreement about what constitutes good medical practice, it is considerably more problematic where there is contestation about what constitutes an error and who owns the definition of an error. Design-based regulation involves challenges to professional agency and authority, and engages with wider debates about the regulation of the medical profession. It is vital that the introduction of patient safety technology is sensitive to the values and motives that get encoded in design. (C) 2010 Elsevier Ltd. All rights reserved.

Purpose

This paper aims to outline and comment on the changes to medical regulation in the UK that provide the background to a special issue of the Journal of Health Organization and Management on regulating doctors.

Design/methodology/approach

This paper takes the form of a review.

Findings

Although the UK medical profession enjoyed a remarkably stable regulatory structure for most of the first 150 years of its existence, it has undergone a striking transformation in the last decade. Its regulatory form has mutated from one of state‐sanctioned collegial self‐regulation to one of state‐directed bureaucratic regulation. The erosion of medical self‐regulation can be attributed to: the pressures of market liberalisation and new public management reforms; changing ideologies and public attitudes towards expertise and risk; and high profile public failures involving doctors. The “new” UK medical regulation converts the General Medical Council into a modern regulator charged with implementing policy, and alters the mechanisms for controlling and directing the conduct and performance of doctors. It establishes a new set of relationships between the medical profession and the state (including its agencies), the public, and patients.

Originality/value

This paper adds to the literature by identifying the main features of the reforms affecting the medical profession and offering an analysis of why they have taken place.

Independent regulatory agencies, faced with multiple and often conflicting demands from regulatory stakeholders, yet operating at arm’s length from government, may be under considerable pressure to demonstrate the legitimacy of their decisions and the regime they administer. This article considers how regulators employ presentational strategies to establish and maintain their legitimacy by documenting the findings of a comparative study of two independent agencies responsible for the regulation of trade practices in their respective jurisdictions: the UK Office of Fair Trading and the Australian Competition and Consumer Commission. Its findings demonstrate that presentational activities may be an important means by which regulators give concrete expression to their obligations of transparency, promote the effectiveness of the regime they administer, and publicly demonstrate how their work serves the community. The mass media is relied upon by both agencies as the primary vehicle through which they seek to communicate to their targeted audiences and the public at large, actively seeking to manage the ambivalence that infuses the regulatory enterprise.