Please note that this is BBC copyright and may not be reproduced or copied for any other purpose. RADIO 4 CURRENT AFFAIRS ANALYSIS WAR OF THE PROFESSIONS? TRANSCRIPT OF A RECORDED DOCUMENTARY Presenter: Alison Wolf Producer: Chris Bowlby Editor: Hugh Levinson BBC White City 201 Wood Lane London W12 7TS 020 8752 7279 Broadcast Date: 24.04.08 2030-2100 Repeat Date: 27.04.08 2130-2200 CD Number: Duration: Taking part in order of appearance: Bernard Ribeiro President of the Royal College of Surgeons of England Professor Peter Rubin Chair of Postgraduate Medical Education and Training Board (PMETB) Sunand Prasad President of the Royal Institute of British Architects Steve Brooker Senior Policy Analyst, National Consumer Council Jonathan Sumption QC Barrister David Hunt Conservative Peer Solicitor Roy Lilley Former NHS Manager Sir Samuel Brittan Economic Commentator Sir John Tooke Senior Physician Chair of the Medical Schools Council WOLF: Stand here, as I’m doing, in the Royal Institute of British Architects, and the world of the profession seems entrancing: magnificent art deco headquarters; a grand staircase; names of past presidents carved in the marble walls; plus the most elegant of modern steel reception desks; and a pretty fine café. It’s hard to believe here that anything is wrong. Privileged serenity is more what springs to mind, a sort of swan upon the waters. Nothing of the sort. Under the surface, the professions are not really paddling like crazy; they’re engaged in a long war of attrition with government. And they’re losing. PRASAD: I think in their practice governments have almost relentlessly denied the existence of anything fundamentally good about the professions. SEGUE: LILLEY: We’re seeing effectively the de- skilling of the professions, so their power is I think ebbing away. SEGUE: WOLF: Two voices, one viewpoint. The professions are under attack. The first speaker, architect Sunand Prasad, thinks governments have it wrong; the other, manager and health commentator Roy Lilley, that it was long overdue. But why should we, the general public, care? Maybe we should be celebrating - far more people can now afford legal services, downloading wills and letters from the internet instead of going to at lawyer. On the other hand, are we really happy to have non-surgeons deciding who is safe to operate on us? Medicine is one of the professions whose organisation has changed substantially in recent years. And, as this programme has discovered, the change has generated a bitter dispute over the safety of patients and of surgery. Bernard Ribeiro is President of the Royal College of Surgeons of England. He is angry about current arrangements for placing doctors on the ‘specialist register’, which makes them eligible for consultant appointments in the health service. RIBEIRO: This college is well aware of people who we would feel from the interest of public safety were not ready for consultant practice by virtue of being on the specialist register. Now the argument would be being on the specialist register is one thing; getting a consultant job is another thing. But if a college has already deemed through its assessment of someone that they are not qualified to get on the specialist register, then we would expect the overseeing body to accept that recommendation. And that has not been happening. WOLF: It has not been happening because the professional associations no longer have the final say. Since 2005, this belongs to a government regulator, the Postgraduate Medical Education and Training Board, or PMETB. This regulator is appointed by and answerable to the Secretary of State, the government minister who runs the NHS. When someone applies for registration, doctors from the relevant medical speciality will normally be involved. For example, as assessors of an application from someone trained outside the UK. But the regulator does not always accept their advice. Bernard Ribeiro. RIBEIRO: We know of instances. I won’t pick out anecdotal stories, but we know of instances where referees have been asked to give a reference and the person giving the reference has not himself been in active practice for many, many years but has some time in the past worked with the person submitting the application. Now I think from a patient’s safety point of view, I as a patient would feel much more comfortable and reassured if I knew that my sponsor as a referee was an active practising consultant and, therefore, somebody who understood the current problems about healthcare provision. WOLF: The people within PMETB who do this recognition process, are they themselves practising members of the relevant professional body? RIBEIRO: Not necessarily so. I think PMETB has set up a process where its panel of assessment may not necessarily have on that panel anybody from the particular speciality that is being reviewed. I think that they feel their process is so robust that this isn’t necessary because they are making the decision on the basis of criteria and I would say not necessarily on the basis of expertise. Because if you don’t have a specialist person on that panel that is dealing with that particular application, how can you say that the expertise is there? WOLF: Professor Peter Rubin is Chair of PMETB. In his view, the board’s procedures are entirely sound. RUBIN: In order to go onto the specialist register, a doctor has to show that they’ve got the knowledge and skills required to do just that, and in the vast majority of cases we agree with the recommendations of the Royal Colleges. In a tiny number of cases, the colleges have been unable to support their opinions with evidence. Now when that happens, we always go back to the college and say, “Could you let us know why you think what you think?” And if they are unable to provide us with evidence but still hold to their opinion, then we go to the hospital where the doctor is working, we speak to the medical director or the clinical director responsible for the care in that hospital and get their view on the standard to which that doctor is working. And then we look at all the evidence available at a specially convened panel. So we look at this very carefully indeed and we would turn down a recommendation from a college only after very careful investigation. WOLF: Right or wrong, PMETB has the final say over entry because that is what government decrees. And this is something new: a change in a centuries-old arrangement. Historically, the professions - law, medicine, architecture and the rest - have enjoyed enormous independence as well as, often, wealth. This has been based on their specialist knowledge but also on a claim to moral status, based on ethical behaviour. Sunand Prasad, President of the Royal Institute of British Architects. PRASAD: In order to be seen as a professional, you had to be seen to be above the marketplace. Notwithstanding that you create another marketplace, but there was if you like a marketplace associated in the popular imagination with venality, greed and self-interest and so on, which of course may well be the very things that drive the economy. But professions were definitely putting distance between that and themselves in order to be at the ruling table. WOLF: Of course, it’s also true that professional status can be a nice little earner. We are certainly not the first generation to criticise professionals. There’s a great Shakespearean moment in Henry VI: ‘The first thing we do’, shouts a Kentish rebel, ‘let’s kill all the lawyers.’ It still brings the house down. Most of the time, though, ‘professional’ remains a term of high praise - “That’s a really professional job you’ve done there.” So why is government taking action now? - and not just over who controls entry to the professions. There are also major changes in professionals’ freedom to ‘self-regulate’ and run their own disciplinary procedures. Steve Brooker is a senior policy analyst at the National Consumer Council, a body that’s been set up and funded by government to campaign on consumers’ behalf. He thinks it’s the professions’ own fault. BROOKER: There’s a kind of a bargain theory of the professions where they kind of enjoy autonomy in exchange for upholding strict ethical standards. Unfortunately, there’s been some scandals hit the professions in recent years - in medicine we’ve seen Bristol, Alder Hey, the Shipman murders - so there’s a sense in which the professions have failed to uphold their side of the bargain. WOLF: Do you think the scandals that you describe would actually not have happened under the current regulatory regimes? BROOKER: I think those scandals were not just individual mistakes or acts of dishonesty, but also systemic failures. And those failures were rooted in a lack of independence, ineffective supervision, but also a culture that too often puts professional self-interest before the public interest. WOLF: But can that be the whole story? Yes, there have been big medical scandals - Harold Shipman murdering his patients, Bristol’s failure to respond to abnormally high death rates among babies receiving heart surgery. But there’s been nothing as high profile involving the other professions - and, in any case, the public hasn’t actually taken against doctors. In public surveys they and teachers are consistently the most trusted groups - with politicians down at the bottom. Jonathan Sumption QC is one of our most eminent barristers and has acted for the government in a number of major cases. He has a very different explanation for what is happening: the ambitions of a modern, centralising state. SUMPTION: The origin of this process I suppose lies in the middle of the 1980s with Mrs Thatcher’s assault on independent institutions of many kinds, of which the professions and particularly the legal professions were only one. That involved a process of deliberately neutering alternative sources of influence to the government because I think that she instinctively felt that existing institutions were viscerally opposed to what she was trying to do. But the policy has been accelerated very much after her departure and in particular since 1997. WOLF: One example of this is the new and highly controversial Legal Services Act, which creates a new ‘super-regulator’ for lawyers. The Legal Services Board is appointed by the government and has very far-reaching powers. As such, it has been strongly attacked for undermining the independence of the legal profession in England and Wales. The Conservative peer and well-known solicitor, David Hunt, chaired the Joint Committee of both Houses of Parliament responsible for the pre-legislative scrutiny of the Bill. HUNT: English law is respected across the world. A lot of commercial enterprises use English law in their contracts. If it became even a suspicion that the legal profession in this country was being run by a government quango, then I could see all sorts of problems arising. WOLF: And in fact one of the things that is quite extraordinary was the number of additional powers lodged in the Secretary of State by this legislation. HUNT: All governments like to control things, it’s a sort of control freakery. And, therefore, as soon as you start to reform, you want to control the reforms. WOLF: Suppose I came back to you and said one reason that governments are so antagonistic towards the professions is that professions think they know it all - they make their decisions, they don’t see why anybody should question them - and only the government can really speak for the public. HUNT: That’s very true and professions ignore the public at their peril. And I’m afraid the legal profession did, so there was a situation which was intolerable from the point of view of a lot of consumers. They wanted to make a complaint against a solicitor. The complaints were never dealt with, certainly weren’t dealt with within a reasonable timescale. Quite rightly, we paid a price for that. WOLF: The National Consumer Council, created to speak for the consumer interest, has been a very strong supporter of the Legal Services Act. Rather than leaving it to the professions to punish their incompetent practitioners, Steve Brooker would like the majority on regulatory and complaint-hearing bodies to be ‘lay people’ - people who do not have specific professional expertise. In the old days, of course, the laity knew their place, deferring to kings, priests and professionals. Today’s mood is strongly sceptical about experts’ claim to authority. BROOKER: Lay input’s extremely important. Ideally we would like to see that written into the rulebooks in terms of a lay majority on decision making structures. It’s sometimes said to us by the professions that the issues they deal with are too specialised for lay people to understand, but I think they over-claim on that point. WOLF: You articulated quite a strong position there. You said you wanted “a lay majority”. How can you have a lay majority on decision making bodies and still make appropriate decisions? BROOKER: I think the structures can have specialism built within them, but that doesn’t mean to say that the specialists must have decision making power. It’s very important that decisions about regulation are made in the public interest and not in professional self-interest. WOLF: George Bernard Shaw would certainly have agreed. He complained that all professions were ‘conspiracies against the laity’, and that doctors ‘will allow a colleague to decimate a whole countryside sooner than give him away.’ Roy Lilley, a former top NHS manager, is similarly sceptical about medical self-regulation. LILLEY: I think that all discipline committees should be composed entirely of lay members. I think they should have advice from appropriate professionals. There could be professional witnesses in very much the same way that there are in the courts. I think it’s important that if we acknowledge the role of the taxpayer in its ownership of the NHS, then it is the taxpayers and the people in the street who should decide whether or not something has gone wrong and who’s to blame. I just don’t think that the public these days are prepared to put up with doctors really looking after doctors. It’s an 18th century idea and I think we’ve all moved on from that. SEGUE: SUMPTION: The idea that simply because you are part of a profession, you have an interest in getting your colleagues off is complete nonsense. Quite the opposite. WOLF: Jonathan Sumption argues that there is no empirical evidence whatsoever to support the claim that self- regulation doesn’t work. SUMPTION: I have no problem about the regulation of cartels, and I think the public has every right to expect professions to be prevented from operating in that way. But the current frame of mind goes a long way beyond that in that it appears to be based on an assumption that the professions are incapable of being trusted to regulate their own affairs and, in particular, their own disciplinary affairs. So far as I know, there is no historical experience that justifies that view. The professions, particularly the lawyers and the accountants, have a record of being particularly savage to their own straying members. They have actually historically done this job rather well, whereas the government has tended to do it badly. WOLF: So suppose you were asked to be a lay member of a regulator of the medical profession. Would you feel you had anything to offer? SUMPTION: Yes, but only because I’m a lawyer. Every regulatory scheme and every disciplinary scheme operates in an environment drenched with law and is subject at every stage to a variety of legal challenges, so that it’s very difficult now to operate without the assistance of lawyers. WOLF: But what about you not as a lawyer but as that increasingly popular person, a lay member? SUMPTION: I doubt whether I would be in a position to contribute enough to justify taking a seat that might otherwise be occupied by somebody who really knew the profession backwards. WOLF: Given how expensive professionals can be, it is certainly true - they have a strong interest in maintaining public confidence! Interestingly, economists, who have a particularly well developed nose for self-interest, focus their criticisms not on disciplinary issues but on the ability of professional cartels to drive up prices. BRITTAN: They’re halfway between something special and monopolies with pretensions. WOLF: Sir Samuel Brittan, one of our most distinguished economic commentators, says the professions - these “monopolies with pretensions” - need to be seen for what they really are. Qualifications are a useful indication of skills. It shouldn’t automatically follow that only the people with the right qualifications are allowed - or licensed by government - to offer a particular service. BRITTAN: They do have obviously specialist knowledge. On the other hand, they’re also trade unions in a sense. They are there to advance the interests of their members. There’s no harm in that so long as we don’t take them at face value. WOLF: So do you think we have too many licenses to practice in this country? BRITTAN: Yes, far too many, far too many. WOLF: Nonetheless, a lot of people try to persuade government that there ought to be licenses because it’s supposed to be a way of protecting the consumer, protecting ordinary members of the public. Is there no virtue in that argument? BRITTAN: Not very much. If people can be regarded as fully adult, they should know that if somebody practices as a dentist and doesn’t have some letters after his name, they go there at their own risk. They might get better treatment; they might get worse. WOLF: In some areas of British life, licensing is actually on the rise: - mini-cab drivers are an example. But in others, changes such as the competition laws have definitely given people new choices. Moreover, there’s been a quite deliberate self- conscious effort to shake up the world of the professions. The Blairites set out to generate what they called ‘constructive discomfort’, but the process started much earlier. Roy Lilley was in the frontline as one of the businessmen brought in by Mrs Thatcher to run the big NHS trusts. LILLEY: You have to put the pressure on the professions. For example, I think the government’s policy to introduce the private sector with independent treatment centres, that was a very good example of creative discomfort because we had the private sector arrive with (in some cases) a caravan in the car park and they did the cataract operations, and so all the cataract operations were done by a South African company in a caravan in a car park and it was done very well and the caravans were fantastic operating suites. But of course what happened was the ophthalmic department was doing no business, if I can put it like that; not seeing enough patients, so it gave managers the opportunity to go to the medics and say, “Look, unless you sort this out, we’re going to lose the business. If we lose the business, we don’t need the ophthalmic department. We’re going to close it.” That kind of shook everybody up and made them think. And I think also there’s the general erosion of the professions now within the health service. Much of what doctors used to do is now done by nurses. Much of what nurses used to do is now done by healthcare assistants. We’re seeing effectively the de-skilling of the professions, so their power is I think ebbing away. WOLF: But are traditional professional skills really so irrelevant or easy to replicate? Sir John Tooke is a senior physician and Chair of the Medical Schools Council. He is highly critical of the way in which the Department of Health has approached professional skills, and of its belief that they can be broken down into smaller, simpler activities. TOOKE: It’s simply naïve. Different professional roles require different educational foundations. If you pursue a medical practitioner type of role, then you need a profound foundation in science, you need a deep education to enable you to undertake the clinical reasoning which is absolutely key to diagnosis - finding out what’s wrong with people. If the pattern doesn’t fit, you need to be able to go back to base principles and work things out from a knowledge of the science. WOLF: The Department of Health conceived the notion of a ‘skills escalator’. The idea was that people could start from just about anywhere and accumulate bundles of relevant skills. It also believed you could develop very clear rules and procedures that anyone could follow: - what scientists call a protocol. That way, the health service could employ all sorts of new health professionals, substituting them for fully-trained - and expensive - doctors. TOOKE: The results of role substitution experiments are not particularly well publicised, but when they have been conducted they’ve tended to reveal that the role substitutor for the doctor is no more cost effective and indeed in some cases less cost effective than the doctor doing that role. And the real reason for that is that a role substitutor may be able to follow a protocol, but unfortunately human beings and human disease don’t conform very neatly to protocols and that gets forgotten. WOLF: The belief that the department had in a skills escalator - that you’d just accumulate things as you go on up - how far do you think they saw this as potentially a cost cutting exercise and how far was it motivated by other beliefs and objectives? TOOKE: It was an over simplistic view which didn’t take into account the necessary educational foundations. I think it’s had quite a damaging impact and it’s contributed to the alienation of the medical profession. So that in combination with a hierarchical control system and loss of clinical engagement on the ground, then it’s not surprising that doctors have felt somewhat de-professionalised and undervalued. WOLF: But is de-professionalizing always bad? Sometimes there are technological changes which, quite simply, transform what we can do - and who can do it. The rise of the internet means that not only do we visit our doctors and lawyers primed with masses of information - more or less well digested - but also that we can access all sorts of documents and advice that were once available only to a few, for a price. Roy Lilley. LILLEY: If you take the legal professions, solicitors - there was a time when you went to a solicitor for everything. Now you can go online and for a few pounds you can download a solicitor’s letter for almost everything to start the proceedings off. You can even get a divorce yourself. You can go into a well-known high street stationer’s and buy the papers to get the divorce underway. You don’t need to go to a lawyer for that. And indeed you can write your own will these days. So we’re seeing it in all walks of life. Wherever there are professions, I think they’re under pressure. The technology and de-skilling is undermining them all. WOLF: And rightly so? LILLEY: And rightly so. WOLF: There are not many people these days who will speak up in a general way for cartels and closed shops. Get to the specifics, however, and it’s a rather different picture. Solicitor David Hunt, for example, is sceptical about the benefits of do- it-yourself lawyering, including wills off the web. HUNT: If you’re making a will, even if all you have is your own home and perhaps a few assets, quite often by securing on the web or through the internet a quick and cheerful and cheap way of making a Will will actually miss all the key things that you should be thinking of in order to avoid tax, in order to benefit your family. And if you were to pay just a little bit more, you would get a much higher quality of advice. WOLF: To which of course one responds, “Well they would say that, wouldn’t they?” But is that fair? Sunand Prasad, President of the Royal Institute of British Architects, believes that there is still something special about professionals. PRASAD: It is quite remarkable how many people enter professions with a genuine view of public service as a genuinely fulfilling thing. Not as even altruism, but it’s just what makes them tick. And I think that that is very often totally disregarded and underestimated because we are in quite a sort of a cynical habit of mind today about thinking about the world, what makes it work, and we’ve in a sense completely bought both the Marxist and Capitalist views that actually the only thing that makes anybody tick is dosh. WOLF: So ethics is really part of the picture. Do you think government believes that? PRASAD: Government may or may not believe it, but it certainly doesn’t act as if it believes it. I think it’s quite interesting to separate what governments say and what they do. I think in their practice governments have almost relentlessly denied the existence of anything fundamentally good about the professions for rather a long time and concentrated rather on all the negative aspects, which I don’t think we can deny either. WOLF: The government certainly isn’t denying them. On the contrary. They are one of the major justifications for that growth industry: government regulation. The architects have certainly been getting their share. Their regulator, the Architects Registration Board, doesn’t recognise their professional body’s approval process for university schools of architecture. It doesn’t see any need for an architect to chair its education committee, and it won’t recognise qualifications from overseas degrees which have been formally accredited by the Royal Institute of British Architects. So all over the country, directly or at arm’s length, government is taking over functions it was once happy to leave to the professionals themselves. Some people think this is the professionals’ own fault; some people think it’s a straightforward grab for power. Is there something else going on as well? SUMPTION: I think it’s a general demand that the government should be responsible for ensuring that nothing goes wrong in life generally, which I think is a little unrealistic. WOLF: Barrister Jonathan Sumption argues that, in our regulated world, no-one will accept personal responsibility any more. SUMPTION: The most striking example is very much to do with the medical profession. In taking very difficult moral and ethical decisions, there is an increasing tendency for medical professionals to run off to the courts and ask for absolution for whatever it is that they are about to do when, as it seems to me, this is an inescapable part of their personal, moral and ethical responsibility. Ultimately the buck stops with the individual, or should do. WOLF: But these days it stops with the minister? SUMPTION: Yes, it does, but the minister is the person who is least able to do anything about it except do the only thing that ministers can do, which is to introduce another fifty-five clauses of regulations. WOLF: So is there any future for the professions? Over at the National Consumer Council, Steve Brooker is happy enough with the way things are moving. BROOKER: I think the old model of the professions in which there was complete self-autonomy from external control and there was a closed shop has kind of had its day. I’m glad about that. I still think there is value in the professions and there’s much to admire in terms of upholding ethical standards, but there are new challenges to the professions. The professions need to refresh their values, they need to open up to lay input, they need to embrace the market. If they do those things, they will thrive. If they fail to do them, I think that others may well rise to take their place. WOLF: But is it really all so simple? Obviously we want a good deal for consumers and of course we need to accept occupational change. But the ideal of a profession, if not always the reality, involves something more. Professionals’ values and attitudes are bound up with their independence and responsibility for their own affairs. If the traditional professions end up losing all their privileges, surely there is a risk that they will take that value system down with them.