Abstract
It sometimes seems that we expect our regulators to be superheroes. We expect them to predict, detect and punish wrongdoing. We expect them to protect the rights and interests of vulnerable citizens. We expect them to provide guidance on exemplary ethical behaviour for every eventuality. We expect them to weigh benefits and harms wisely and bestow penalties on offenders that all agree are fair and appropriate. We might even find ourselves wishing that, like Wonder Woman or Spiderman, our professional regulators will be ‘the champions of right and good against evil and injustice’. 1
Whatever we might expect or wish, the track record of regulators of health and social care professionals is much more limited and contested. The care contexts and conduct these regulators are concerned with are much more complex than the generally more straightforward domains of superheroes. In the terrain of the superheroes, villains are wholeheartedly welcomed villainous and interventions to protect vulnerable citizens are unanimously welcomed (by good people at any rate). Superheroes’ decision-making is generally more black and white with few shades of grey and with little of the messiness, ambiguity and complexity of the ‘swampy lowlands’ 2 of contemporary health and social care practice.
I was reminded of this last week, as I attended an excellent conference on the theme of ‘Regulating for positive outcomes’. 3 The conference brought together UK health and social care regulators and academics engaged in regulation-related research. Reassuringly, there is now a good deal of activity developing a stronger evidence base for regulatory practice with collaborative interdisciplinary initiatives relating to questions such as ‘How are we to understand and prevent unethical practice?’ ‘What role might patients and the public play in regulatory activities?’ ‘Which factors contribute to different judgements regarding sanctions for misconduct?’ ‘Why, for example, might members of the public view a dentist’s tax evasion more leniently than the regulator?’ And which approach to regulation is most appropriate for 21st century purposes: Right-touch regulation? Relational regulation? Values-based regulation? Or some combination?
The conference also included discussion of the potentially detrimental impact of regulators’ interventions relating to responses to complaints and management of ‘warnings’. 4 One speaker referred to doctors’ increased vulnerability to self-harm and mental distress following complaints. The discussion focused on the potential of regulators to be viewed as adversaries rather than as humane and objective investigators charged with public protection and fairness in relation to professionals.
Reaching consensus on what it means to be a ‘good regulator’ is challenging. A recent report from the Professional Standards Authority 5 stated that ‘Health and care regulation is incoherent and expensive and there is little evidence for its effectiveness; if it was going to improve care it would have done so by now. It’s time to rethink regulation’. Is it reasonable to expect regulators to improve care? Can we know what care would be like without regulation? We might speculate as to what regulatory success might look like and consider alternatives…What other avenues would enable patients and the public to easily raise concerns about professional misconduct? Which bodies would be better placed to set national standards and the direction of travel for the education and practice of individual professions? Which organisations could keep and police the professional register? Also which institutions would be better placed to develop and implement codes of ethics? Which processes would ensure that professionals are investigated fairly and held to account for patient abuse, neglect or exploitation? And, crucially, would there be less or more unethical practice without regulators?
It seems clear that these functions are not fulfilled perfectly by regulators, and there may be more effective alternative arrangements. However, the PSA conference reassured me that UK regulators – and the regulator that regulates them (the PSA) – at any rate, are on their case. They demonstrate open-mindedness, and perhaps also courage, in commissioning research inviting explanations and creative solutions. See, for example, the comment piece by Michael Guthrie in this issue.
We expect a phenomenal amount from our regulators and, however, much we might wish it, they do not have superpowers to champion right and good over wrongdoing and injustice. Perhaps, then, rather than having expectations of regulators as superheroes or adversaries we should work together to determine the values and priorities of the ‘good enough regulator’.
Spiderman said ‘With great power comes great responsibility’. 6 All of us can use our powers for good or ill and need to proceed thoughtfully. We need to take into account human fallibility and vulnerability and the impact of the inter-relationship between individuals and organisations. We need to be aware too that we still know little as to how to predict and thwart the unethical behaviours of individuals and the toxic organisational cultures. Further research is required to understand the misconduct of individuals and organisations and to devise effective upstream strategies to prevent harm to vulnerable citizens.