Risking Censure, and the Ontology of Misconduct

An article in a recent BMJ has caught my eye: Yates and James’ “Risk Factors at Medical School for Subsequent Professional Misconduct: Multicentre Retrospective Case-Control Study”.  Based on an admittedly-small sample, it suggests that

male sex, lower estimated social class, and poor early performance at medical school were independent risk factors for subsequent professional misconduct.

A number of comments on the “Rapid Responses” page – and the authors themselves – indicate that the survey isn’t big enough to say much of much importance, but they find it interesting nonetheless.  For the purposes of this post, I’m not all that bothered by questions of statistical significance, or even by any policy implications that such findings may have.  There’s a number of other interesting points to make.

One of these has to do with the question of what, exactly, we mean by professional misconduct.  For obvious reasons, the BMJ paper relies on data from cases heard by the GMC.  But if that’s the case, then what it’s actually talking about is not misconduct, but cases that have come to the attention of the regulators.  And while there is a tenable positivist (or downright gradgrindian) claim that misconduct is nothing except that the GMC declares it so, it’s also the case that the term “professional misconduct” is equivocal.  By this, I mean that there’s an everyday sense to it that’s richer than the positivist claim would allow, inasmuch as we have a sense of what is demanded of professionalism that could come apart from the GMC’s standards.  It’s possible for there to be some things that are acceptable in the everyday sense but that still fall foul of the GMC’s rules, and other things that are permitted by the GMC’s rules that are unacceptable.

In a nutshell: being fingered by the GMC for professional misconduct isn’t necessarily a reliable indicator of bad behaviour; and even when a GMC censure and moral censure coincide, they’re still distinct.  So when Yates and James note the Harold Shipman case as a good example of professional misconduct, I can’t help thinking that there’s just the teeniest bit more to it than that.

But the thing that’s oddest about the paper is the use of the concept of “risk factors” in respect of misconduct, because it presents misconduct as a misfortune that may befall a person if he does not take care or if there is some managerial lapse.  To this extent, I’m reminded of Samuel Butler’s Erewhon, in which people talk about themselves as having come down with a case of mild theft:

But if a man forges a cheque, or sets his house on fire, or robs with violence from the person, or does any other such things as are criminal in our own country, he is either taken to a hospital and most carefully tended at the public expense, or if he is in good circumstances, he lets it be known to all his friends that he is suffering from a severe fit of immorality, just as we do when we are ill, and they come and visit him with great solicitude, and inquire with interest how it all came about, what symptoms first showed themselves, and so forth,—questions which he will answer with perfect unreserve; for bad conduct, though considered no less deplorable than illness with ourselves, and as unquestionably indicating something seriously wrong with the individual who misbehaves, is nevertheless held to be the result of either pre-natal or post-natal misfortune. (§10)

And maybe this fits perfectly with the positivist claim about the ontology of misconduct.  After all, it seems to divorce professional misconduct from any substantially moral claim; for if you’re at risk of misconduct, you presumably can’t be held responsible for it – though you may, of course, be responsible for not taking sufficient prophylactic measures.  (Consider this analogy: we allow a doctor to practise even though he has an infectious disease.  We accept that there might be a risk of transmission, but we don’t hold him blameable as long as he’s taken reasonable precautions; this being the case, it’s a failure of precaution that’s blameable, rather than transmission – and we’d want to say that any failure to take prophylactic measures is blameable even if noone is infected.)

Yet this seems to indicate a very passive view about misconduct, and if it’s sincerely held, it seems to erode the idea that misconduct an sich is ever justly blameable – that doctors are, though saintly, sometimes sadly prone to dark forces over which they have no control and that make them do bad stuff.  This is very strange stuff indeed.

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