The law and medicine now share common challenges. Over the latter part of the last century, some of the basic elements of the professions were questioned, and they continue to be so. Some have asserted that the professions have exploited their monopolies: for the medical specialists, for example, it is asserted that the specialities have restricted the numbers admitted to the profession; of the lawyer it is said that a monopoly over this essential service has caused the administration of the law to become too expensive. It has been said that the doctors and lawyers have abused collegiality to protect the incompetent or the unethical. And, perhaps most importantly, both the law and medicine have been criticised for failing, or at least falling short, in their roles as self regulators.
The challenges that we face have parallels in effect. Both professions have now ceded ultimate disciplinary control to “boards”, or “commissions”. Doctors have state, and perhaps soon national medical boards. There is now a legal services commission in all states of Australia, with power to investigate and prosecute those who fall short of acceptable professional standards. This is a kick in the pants for both professions, although ultimately not a matter which will directly affect many of us. Yet most of you, like us, would have been uncomfortable with this “intrusion”, and with the notion that lay members or observers would have some role in determining the outcome of complaints.
The medical profession has for centuries had a greater degree of control over admissions to practise than has the legal profession. The colleges, as conduits to medical specialty, have proven much more enduring than Lincoln’s Inn, Grays Inn and the other Inns in Chancery Lane. However, the monopolies that the professions had on training, admission and on the areas of practice traditionally regarded as the province of doctors, lawyers and indeed the courts have been substantially eroded. In the medical profession, the colleges now permit admission under greater external influence than in the past; and many procedures and tasks traditionally performed by doctors are now performed by paramedics and other “health carers”. In the law, barristers and solicitors have for the most part retained their “turf”, but in litigation there has been a significant “outsourcing” of the means by which the community resolves its disputes. The huge growth in alternative dispute resolution, in mediation, is a direct consequence of the inability of the lawyers to provide inexpensive but effective dispute resolution through litigation. There is a sound view that litigation is beyond almost all bar wealthy corporate entities and individuals, and otherwise those who litigate with the benefit of no win no fee arrangements. The latter category of litigant is confined, in practice, to personal injuries litigation, where outcomes are relatively predictable, and the number of cases high. Mediation, on the other hand, is relatively inexpensive: it gives rise, technically, to an inferior outcome — a fuzzier outcome in legal terms — but it is cheap. At the highest level, the court, there has also been a significant outsourcing of work: long law lists in the newspaper may now be found for the multitude of tribunals hearing the smallest to some of the biggest cases in the State.
There is no doubt a legitimate public interest in these interventions. The large sum of public money spent on health care and the legal system is reason enough. Moreover, although we may not like it, we must concede that in some important respects law, and medicine, have failed in a fast changing environment to keep close the values fundamental to a profession.
How best do our professions position themselves for the future? It would be naive to think that there have not been tectonic changes to the way in which we go about our work, and that those changes are reversible. But not all change is bad, and change is seldom as bad as we fear it might be. The changing circumstances in fact present opportunities to return to values that we have long held dear, and better to carry out expectations which have long been held of us.
Can I put to you that the single greatest threat to the medical profession, and to the legal profession, is public mistrust? Minds will differ as to whether, and if so to what extent, but that is not really the point. In the case of the medical profession, the principal element of mistrust goes to competence: the perception perpetrated by a willing media, accepted by some members of the public, that the profession, and the regulatory bodies, have been unable to ensure that all medical practitioners have the requisite degree of competence. It is trite now to talk of the Bristol affair or, whatever the rights and wrongs of the criticisms of Bundaberg Hospital, but examples of that nature have a significant impact on the public’s perception of professional standards, and upon the reliability of the profession in regulating entrance to its ranks. In the case of lawyers issues going to competence undoubtedly exist, but do not seem to attract the same public attention, perhaps because fewer have contact with the legal system, and because it is more difficult, in contested litigation, to identify the bad outcome. The single most important issue for lawyers in the context of public mistrust is cost, and the rather disturbing proposition that the majority of our citizens cannot afford to go to Court.
Mistrust of this nature goes to the heart of our identities as professions, as opposed to commercial service providers. And we are not just commercial service providers. We must ask ourselves, it seems to me, how to remedy the mistrust, and move our professions forward with the times.
Can I suggest these questions and touchstones?
First, are our professional associations and regulatory authorities doing everything necessary to ensure the quality of our standards and, importantly, are we as members recognising the necessity to respond positively and cooperatively to sensible reform. Under the present regulatory regimes for both professions, the professional associations may regulate the continuing right to practice by the imposition of conditions. In the case of some medical specialities, for example, colleges are insisting upon members providing information and results permitting performance audit. Performance audit is for many a sensitive topic, an intrusion which, whatever your results, feels unwelcome. That is understandable, yet may I suggest the response of our professions to reforms of this nature lies at the heart of our ability to maintain public trust, and our continued, relative, autonomy. And can I comfort you with these observations concerning audit? A barrister’s court work is carried out, in public, before a judge, and in front of her peers. There is for the bar a very public process of audit, and we have long survived it. If one means of identifying outliers, and perhaps enhancing professional standards more generally, is for surgeons to submit to the process of audit in a way which is protected by confidentiality, why not embrace it? There is no more fundamental professional responsibility than the provision of competent services. This, in the modern day, surely involves not only adequate training and continuing education but also willingness on the part of the professions to embrace processes of audit designed to identify problems and hence permit a means of remedying them. Another measure, the subject of statute in New South Wales, and soon to be introduced to the Queensland Parliament, imposes upon medical practitioners a positive, ethical duty to report to the medical board the incompetent fellow practitioner. The obligation under the Queensland proposal is broader than in New South Wales. A positive reporting obligation now exists, in one form or another, on some legal practitioners overseas and there must be a sensible prospect over time that legislation will be passed here with the same object. The notion of such an obligation is confronting, and the circumstances in which such an obligation might arise need carefully to be considered and defined. But these are the sorts of issues that the professional bodies should consider before clumsy legislative enactments make it unnecessary to do so. The key object is the maintenance of public trust in the profession, and in its ability responsibly and effectively to protect its standards and to manage and regulate itself.
On a different but related topic, our professional organisations must be careful indeed when on the one hand representing members, and on the other hand performing public roles. Medical associations have a responsibility to speak out on matters concerning the public health system, such as insufficient funding, or the rise of the influence hospital administrators applying economic rather than clinical criteria for treatments; and Bar Associations have a responsibility to speak out about unjust laws, and the legal system and processes. Our professional bodies also have a role in advancing the interests of members, although we and they need to be mindful that there may be a conflict between these roles. Where the interests of a member or members collectively conflict with the public interest, which interest for our professional organisations should prevail? I would suggest, in an immediate sense, that it is the public interest which should prevail, yet that answer is not entirely fulsome, because it is our acting in the public interest which maintains public confidence, and the confidence of the public is ultimately in the interests of the professions.
Finally, it is important that those studying to be lawyers and doctors be taught about the values of the professions, and professional ethics. Do we, do modern students of the law and medicine, understand the importance of the implicit social contract which, historically, lies at the heart of the true professions: that the right granted by the community, to us alone, to practise in medicine and the law requires us to act not only in the interests of our patients and clients, but in matters concerning our system of health care and the administration of justice, also in the interests of the public?
Roger Traves SC
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