The Implications of the Francis Report for Professionalism and Regulation in Healthcare

1. The Implications of the Francis Report for Professionalism and Regulation in Healthcare Sarah.devaney@manchester.ac.uk Margaret.R.Brazier@manchester.ac.uk

2. Overview • ManReg: the Manchester Centre for Regulation and Governance • Regulating Reputations • Centre for Social Ethics and Policy • Role of the Criminal Law in Healthcare

3. Reputation as a Regulatory Tool • Effective regulation: regulators responsive to the culture and needs of their regulatees • which regulators use reputation and how (and which regulators could resort to it but do not) • which regulatees respond to it and why • in what circumstances it is effective and why. • Credible, effective, legitimate regulators

4. Regulation • ‘sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing a broadly identified outcome or outcomes’. Julia Black (2002) • ‘obligations imposed by public law designed to induce individuals and firms to outcomes which they would not voluntarily reach.’ Anthony Ogus (2009)

5. Trends in Regulation • Command and Control • Right touch etc • Traffic lights • Healthcare – nudging • Regulation that will influence the behaviour of healthcare providers to care for patients in as safe and effective a way as possible in compliance with Good Medical Practice.

6. Francis – What Went Wrong • ‘an unhealthy and dangerous culture pervaded not only the Trust … but the system of oversight and regulation as a whole and at every level.’ • Trust Board: ‘tolerance of poor standards and a disengagement from managerial and leadership responsibilities’ • Regulation: achievement of national targets, financial balance and foundation trust status prioritised the above patient care - agencies, regulators and professional bodies failed to step in

7. Reputation: the Legal Profession • Distress, stress and worry • Compliance is ‘the right thing to do’ • Pride in being part of the solicitors’ profession, and the role of regulation in upholding the standards of the profession • Fear of reputational damage and a denting of ‘professional pride’ of greater significance than risk of sanction (SRA 2011)

8. Reputation: the Medical Profession • Little evidence of the behavioural effects of regulatory activity and interventions on those regulated • Complex: • Goals and incentives of doctors • Habits and self-belief • Reconciling personal judgement with guidelines • Team working and human factors • Morale, workload and resources • Organisational culture (Scraggs et al 2012)

9. Future Work • Why is reputation not important? • Markets (but commissioning) • Can it become more important? • Complexity inhibiting professionalism?

10. The Impact of the Criminal Process in Health Care Ethics and Practice • Major outputs • D Griffiths and A Sanders Medicine Crime and Society (CUP, 2012) • M Brazier and S Ost Bioethics and Medicine in the Theatre of the Criminal Process (CUP, 2013) • A Alghrani, R Bennett and S Ost The Criminal Law and Bioethical Conflict (CUP, 2012)