Alternatives to Adversarial Processes in the Regulation of Professional Ethics

Abstract

Professional regulatory bodies, including ethics committees, association boards, and government licensing authorities, oversee the ethical behaviour of professionals, specifically monitoring their use of power. A key element of such regulation is the hearing of ethics complaints against practitioners. This generally involves adversarial type processes which attempt to echo the legal system. The use of these adversarial models of investigation and discipline is called into question here and other possibilities are outlined.

Questioning the Victim Status of Complainants in Professional Ethics Investigations

“…The resultant “solution” of defensive risk management may yield certain benefits in terms of carefulness and caution, but also contributes to a reduction of openness and trust in the practice of the helping and healing professions. An alternative would involve a willingness to understand the operation of power in the professional relationship as interactive, complex, and best addressed through dialogue rather than inquisitional and adversarial mechanisms (Gunther, ).…”

“…But it would be appropriate for regulatory bodies in the health care industry to be on guard against court processes being used as a part of a pattern of manipulation (Zur, ); such patterns can be recognizable in the distorted ways of viewing the world characteristically displayed by this personality type (Forward, ). Clearly this is a very difficult question, but it therefore requires critical debate; in light of these issues it may be that the adversarial framework used by most grievance procedures needs to be reviewed, and alternatives seriously considered (Gunther, ).…”

Look who’s (not) talking: The use of mediation in medical negligence claims in Ireland

“…Doctors can talk to patients directly without the fear of litigation -this offering a more restorative outcome. There is a focus on the needs and interests of all the parties involved and it avoids the adversarial nature of the legal world (Gunther, 2015). In Michigan open dialogue between patients and doctors, without any legal intervention, reportedly cut claims by more than 50% per year and also reduced resolution time (Helo, 2017).…”

Editorial

“…The next article completes another trilogy, this time, of the work of one author, Steve Gunther. The journal has previously published two articles by Steve, based on his doctoral study in social ecology on the interpersonal psychology of power, on the ethics of regulation (Gunther, ) and alternatives to adversarial processes in the regulation of professional ethics (Gunther, ). His current article, on the subjectivity and intersubjectivity of harm questions notions of the complainant as victim, and explores alternative epistemological views regarding the power that clients have and hold.…”