In Doctors Playing Lawyers, Rebecca Haw Allensworth and Cathal T. Gallagher argue that professional disciplinary systems are “in a state of crisis” (P. 7.) Clear evidence of misconduct is often “ignored or tolerated.” (P. 3.) Despite their ostensible mission to protect the public from incompetent and unethical behavior, boards “systematically fail to identify and stop dangerous professional practice.” (P. 7.)
A key reason for this problem, they argue, is that disciplinary boards are made up primarily of members of the regulated professions. This results in two problems. First, by nature, “self-disciplinarians” are likely to over-identify with the accused (P. 7). Second, except in the system of lawyer discipline, professionals serving on disciplinary boards typically lack any expertise or training in investigation or adjudication. Instead, they are “peers who take a few days out of their busy professional lives to moonlight as self-regulators,” usually with “very little in the way of standards or law to apply, other than to do discipline in the name of the ‘health, safety and welfare’ of the people of their state.” (P. 5.) What results is a haphazard process of “casual, collegial decisions,” rather than a rigorous application of the rules to the facts of the case. (P. 7.) It is therefore not surprising that disciplinary boards exhibit a “high level of variability and inconsistency” in the way they react to allegations misconduct, even within the same profession in the same state. (P. 38.)
The American system of professional discipline stands in sharp contrast to the system in the United Kingdom, which was reformed about twenty years ago to make oversight by the General Medical Council (GMC) “more balanced, structured, and unbiased.” (P. 47.) Today, disciplinary cases against physicians are decided by a tribunal that is separate from the authority that sets entry and practice standards for the profession. Cases are heard by panels of three people drawn from a pool of fully trained and financially compensated hearing officers, at least one of whom must be a layperson. In contrast to the American system, the GMC publishes guidance detailing the standards and procedures for handling complaints and assessing penalties.
To compare the two systems, Allensworth and Gallagher coded five years of disciplinary data from Tennessee and two years of data from the GMC. In Tennessee, they found numerous examples of board decisions that seemed inexplicably lenient. In some cases, “boards use education to rehabilitate providers whose transgressions go beyond a lack of knowledge.” (P. 42.) In others, they impose practice restrictions that “may prevent the precise conduct from recurring in the exact same way, but they ignore the more general danger presented by a provider who has abandoned an ethos of patient or client care to engage in graft or abuse.” (P. 43.) They found that boards had a tendency to minimize misconduct in cases where there was evidence of substance abuse, “persist[ing] in the view that substance abuse is the root cause of misconduct in the face of clear evidence of other factors not as susceptible to treatment: sexual predation, mendacity, narcissism, and gross professional incompetence.” (P. 44.)
In contrast, this tendency toward leniency was not apparent in their review of the U.K data. Of physicians who had been found by a tribunal to have engaged in serious misconduct, the U.K. system imposed serious sanctions at a far higher rate than in Tennessee: 88 percent in the U.K., compared to only 39 percent in Tennessee. Although the percentage of all licensed physicians subject to “serious public action” was higher in Tennessee (about 0.02%) than the in the U.K. (about 0.008%), the authors suggest that this may be because misconduct is simply more prevalent in the U.S.’s profit-driven healthcare system.
Allensworth and Gallagher conclude that the U.K.’s approach offers a model that U.S. states should emulate. Specifically, they call on state legislatures to create a tribunal system to review professional disciplinary cases that would be structurally independent from the entities in charge of setting licensing standards. The tribunal would hear cases from all the licensed professionals, with cases decided by panels of three: one member of the profession in question, one lawyer who works for the tribunal, and one layperson. Unlike the current system, negotiated settlements would not be permitted; all cases in which serious allegations have been brought would result in hearings before the panel.
In addition to improving the quality of the decision-making process, they argue that giving the authority to enforce licensing standards to an independent entity would create an incentive for licensing boards to be more thoughtful when standards are initially developed. Now, boards have the option “to sound tough at rulemaking stage and then refuse to bring the hammer down in individual cases.” (P. 64.) If they a separate entity were empowered to apply the rules, however, the licensing board’s influence over final decisions would depend entirely on how the rules are written. As a result, “boards would likely feel obligated to promulgate, after public input, theories and specifics about when and how a professional should be disciplined.” (P. 64.)
Doctors Playing Lawyers makes a persuasive case for reducing professional dominance over the disciplinary system and systematizing the decision-making process. More broadly, the article stands as a model of the effective use of comparative law to address a contemporary problem in health law. It is a testament to an effective collaboration between scholars on both sides of the Atlantic.
