Thursday, 6 December 2012

'Publish and be damned' (1)

Lord Leveson has just released his long awaited report into the recent (and not so recent) excesses of the Press in Britain (2):

At the heart of this investigation is the conundrum of, on the one hand, preserving the freedom of the Press, which relies at least in part on self-regulation and which historically, as His Lordship points out, has resulted in much good being done, and on the other hand, curbing the excesses of the Press that very freedom can allow to germinate and fester.
In a statement that could as easily be about healthcare as about the Press, Lord Leveson observes that:
‘There is no organised profession, trade or industry in which the serious failings of the few are overlooked because of the good done by the many’.
In other words even if self-regulation enables a lot of good to be done, we may have to compromise self regulation if it also allows some bad to be done.
It appears that the activities of the Press that led to the setting up of the Leveson inquiry suggested to his Lordship that the self-regulating body for the Press had lost its way:
‘The fundamental problem is that the PCC, despite having held itself out as a regulator, and thereby raising expectations, is not actually a regulator at all. In reality it is a complaints handling body’.
This did not, however, diminish Lord Leveson’s appetite for self-regulation of the Press:
‘I should make it clear at the outset that I consider that what is needed is a genuinely independent and effective system of self-regulation. At the very start of the Inquiry, and throughout, I have encouraged the industry to work together to find a mechanism for independent self-regulation that would work for them and would work for the public……’.
Lord Justice Leveson
I recently wrote a case study on self-regulation in the medical profession for the ISQua Fellowship Programme. In this I attempt, by way of citing a particularly tragic episode in the annals of healthcare and by storytelling, to present both sides of the self-regulation in healthcare debate.

Writing in the JRSM, Ash Samanta, and Jo Samanta (3) refer to ‘…a series of high-profile inquiries that cast a noxious miasma over the medical profession and provoked demands for strict regulation.’ However, they conclude that ‘Somehow, a balance must be struck whereby the public can be confident that doctors practise competently, with due regard to ethical and technical standards, yet the regulations are not so overwhelming as to represent a sword of Damocles permanently hanging over doctors' heads’.
The Samantas say complete self-regulation in the medical profession has long been a fantasy – and so it has – but as they also say, correctly, the standards by which the profession is controlled (by a combination of itself and others), ‘…have been set largely by the profession itself’.
So Lord Leveson and the Samantas both argue for the retention and strengthening of professional self-regulation albeit with safeguards.
I believe Lord Leveson’s observation that the body responsible for regulation of the Press had in fact become a complaints tribunal, and the fact that in many parts of the world the (often statutory) bodies established to regulate the healthcare profession go the same way, highlights the importance of keeping these two functions separate. I further believe that, in healthcare at least, the profession itself is best placed to establish appropriate standards and to monitor adherence to those standards. However, the profession should not at the same time have the responsibility of investigating alleged breaches of those standards and of deciding what (4) action to take should it be determined that those standards have been breached. Nor should the profession be de jure or become de facto a complaints tribunal. The roles of professional standard setting and monitoring on the one hand and of policing and adjudicating on the other are incompatible. Certainly the profession’s role as I have outlined it is compromised to the point of paralysis if it ventures into the other arena.
As I write this I see that it appears Lord Leveson’s attempts to have self-regulation retained and indeed strengthened but at the same time introduce statutory or quasi statutory regulatory oversight may fall on deaf ears. The lesson for the healthcare profession, which as the Samantas so colourfully remind us has had a ‘…. series of high-profile inquiries that cast a noxious miasma over the medical profession’, is perhaps for various national or provincial jurisdictions to act now to preserve what is best in professional self-regulation and leave policing, investigations, adjudication, complaints and any (4) subsequent action to others'.

(1)This is attributed to the Duke of Wellington, Arthur Wellesley when he was threatened with the publication of some rather sensitive material (letter written to, and the memoirs of one of his courtesans).

(2) An Inquiry into the Culture, Practices and Ethics of the Press: The Right Honourable Lord Justice Leveson. November 2012.

(3) Ash Samanta, LLB FRCP and Jo Samanta, BARGN.

J R Soc Med. 2004 May; 97(5): 211–218.

(4) Initially I automatically inserted the word ‘discipline’ and ‘disciplinary’ in these places. That would have ignored the fact that while some breaches will call for disciplinary action some, perhaps even many, may be better managed through rehabilitation and/or retraining. If the latter is indicated, then the profession is the place to manage this. There will also be some cases, perhaps few, where both disciplinary action and rehabilitation/retraining are called for. In such cases consultation and collaboration are required.

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