Embedding Economic Relationships through Social Learning? The Limits of Patient and Public Involvement in Healthcare Governance in England

Journal of Law and Society

Volumn 38, Issue 2, 2011, Pages 215-244

  Vincent Jones, Peter ^a  

^a UNIVERSITY OF LEEDS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ECONOMICS; ETHNOLOGY; GOVERNMENT; HEALTH CARE DELIVERY; HEALTH CARE PLANNING; HISTORY; LEARNING; LEGAL ASPECT; PATIENT CARE; POLICY; PSYCHOLOGICAL ASPECT; PUBLIC HEALTH; UNITED KINGDOM;

DELIVERY OF HEALTH CARE; ECONOMICS; ENGLAND; GOVERNMENT; HEALTH PLANNING; HISTORY, 20TH CENTURY; HISTORY, 21ST CENTURY; LEARNING; NATIONAL HEALTH PROGRAMS; PATIENT CARE; PUBLIC POLICY;

EID: 79955612882     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2011.00541.x     Document Type: Article

References (61)

1. The situation is different in other countries within the United Kingdom post-devolution - see D. Hughes and P. Vincent-Jones, 'Schisms in the Church: NHS Systems and Institutional Divergence in England and Wales' (2008) 49 J. of Health and Social Behaviour 400
2. on the relationship between such policy divergence and strategies for PPI, see D. Hughes, C. Mullen, and P. Vincent-Jones, 'Choice vs. Voice? PPI Policies and the Re-positioning of the State in England and Wales' (2009) 12 Health Expectations 237.
3. Council of Europe, 'The Development of Structures for Citizen and Patient Participation in the Decision Making Process Affecting Healthcare' (2000).
4. Department of Heath (DH), Equity and Excellence: Liberating the NHS (2010; Cm. 7881).
5. K. Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, Instead of economy being embedded in social relations, social relations are embedded in the economic system (1944) 57.
6. For an overview of the literature on embeddedness, see M. Granovetter, 'Economic Action and Social Structure: The Problem of Embeddedness' (1985) 91 Am. J. of Sociology 481.
7. A. Ebner, 'Transnational Markets and the Polanyi Problem' in The Social Embeddedness of Transnational Markets, eds. C. Joerges and J. Falke (2010) 24.
8. For an analysis of healthcare in China in such terms, see S. Wang, 'China's Double Movement in Health Care' in Morbid Symptoms: Health Under Capitalism, eds. L. Panitch and C. Leys (2010). The Chinese government is now committed to restoring a more equitable and affordable healthcare system, following a period of market destabilization which undermined the claimed achievements of the Mao era.
9. See J. Harrington, 'Visions of Utopia: Markets, Medicine and the National Health Service' (2009) 29 Legal Studies 376 (analysis of the shift from 'decommodification' at the time of the creation of the NHS in 1948 to 'recommodification' of healthcare provision through market-based reforms in the 1970s).
10. See F. Adaman, P. Devine, and B. Ozkaynak, 'Reinstituting the Economic Process: (Re)embedding the Economy in Society and Nature' (2003) 13 International Rev. of Sociology 357. The extent of commodification involved in economic reform of the NHS in England is open to question: see, for example, M. Krajewski, 'Commodifying and Embedding Services of General Interest in Transnational Contexts: The Example of Healthcare Liberalisation in the EU and the WTO' in Joerges and Falke, op. cit., n. 6.
11. H. Deppe, 'The Nature of Health Care: Commodification versus Solidarity' in Panitch and Leys, op. cit., n. 7. On the effects of marketization in terms of inequality, see C. Hermann, 'The Marketisation of Health Care in Europe' in Panitch and Leys, id.
12. M. Mackintosh and S. Kovalev, 'Commercialisation, Inequality and Transition in Health Care: The Policy Challenges in Developing and Transitional Countries' (2006) 18 J. of International Development 387, at 389.
13. S. Player and A. Pollock, 'Long-Term Care: From Public Responsibility to Private Good' (2001) 21 Critical Social Policy 231.
14. See <>; O. De Schutter and J. Lenoble (eds.), Reflexive Governance: Re-defining the Public Interest in a Pluralistic World (2010); J. Lenoble and M. Maesschalck, Democracy, Law and Governance (2010).
15. S. Frerichs, 'Re-embedding Neo-Liberal Constitutionalism: A Polanyian Case for the Economic Sociology of Law' in Joerges and Falke, op. cit., n. 6. 'The "re-embedding stage" is ... marked by legal regulations which increase the level of social protection by reversing, or at least reducing, the commodification of labour, land and money, and which further social stability ...' (p. 80).
16. J. Lenoble and M. Maesschalck, 'Beyond Neo-institutionalist and Pragmatist Approaches to Governance' Working Paper REFGOV-SGI/TNU-1 (2006) 5. According to this account, the 'normative expectations' of participants in a collective action may be understood in terms of either what members believe should be done or gained, or how the interests with which they are concerned should be met.
17. This distinctive perspective draws elements from various strands of existing social learning theory, most notably in the literature on: (i) deliberative democracy (see, for example, R.E Goodin and S.J. Niemeyer, 'When Does Deliberation Begin? Internal Reflection versus Public Discussion in Deliberative Democracy' (2003) 51 Political Studies 627;P. Strydom, 'Triple Contingency: the Theoretical Problem of the Public in Communication Societies' (1999) 25 Philosophy and Social Criticism 1); (ii) experimentalism (C.F. Sabel, 'Learning by Monitoring; The Institutions of Economic Development' in The Handbook of Economic Sociology, eds. N.J. Smelser and R. Swedberg (1994)); and (iii) organizational learning (C. Argyris and D. Schön, Organizational Learning: A Theory of Action Perspective (1978); D. Schön, The Reflective Practitioner: How Professionals Think in Action (1983); M. Easterby-Smith, 'Disciplines of Organizational Learning: Contributions and Critiques' (1997) 50 Human Relations 1085). Of less direct influence is the literature on cognitive psychology and transformative learning (see, for example, J. Mezirow, 'Transformative Learning as Discourse' (2003) 1 J. of Transformative Education 58), and policy learning and transition management (A. Peterson, 'The Limits of Social Learning: Translating Analysis into Action' (1997) 22 J. of Health Politics, Policy and Law 1077;J. White, 'Learning from Outliers' (2000) 25 J. of Health Politics Policy and Law 743).
18. For a more detailed exposition of the theoretical perspective, including discussion of a fourth ('genetic') approach to social learning in the healthcare context, see P. Vincent-Jones and C. Mullen, 'From Collaborative to Genetic Governance: The Example of Healthcare Services in England', in De Schutter and Lenoble, op. cit., n. 16. Lenoble and Maesschalck, op. cit., n. 16, consider that fully reflexive governance is not possible without such a genetic dimension.
19. <>. Of these, 41 were mental health trusts.
20. P. Allen, 'Payment by Results in the English NHS: The Continuing Challenges' (2009) Public Money and Management 161.
21. DH, 'Principles and Rules for Cooperation and Competition' (2010), at <>.
22. DH, 'Guidance on the Standard NHS Contract for Acute Hospital Services' (2008), at <>.
23. DH, op. cit., n. 24, Principle (x): 'Mergers, including vertical integration, between providers are permissible when there remains sufficient choice and competition or where they are otherwise in patients and taxpayers' interests, for example they will deliver significant improvements in the quality of care.'
24. Health and Social Care Act 2008, s. 3(1).
25. id., s. 3(2). The CQC has duties and powers under the Act in respect of registration (including NHS service providers, ch. 2); review and investigation (ch. 3); and inspection and enforcement (ch. 6). It also has powers to require prescribed persons 'to provide an explanation of any relevant matter ... in circumstances where the Commission considers the explanation necessary or expedient for the purposes of any of its regulatory functions' (s. 65(1)).
26. 'The CCP's approach is grounded in the established principles of economic and competition analysis. However, in applying these principles, the CCP ensures that it takes account of the special features of the healthcare sector, such as it being free at the point of service for patients, the not-for-profit nature of many organisations providing healthcare services and the help many patients need to make informed choices between service providers', at <>.
27. DH, op. cit., n. 3. The proposals are taken forward in the Health and Social Care Bill, introduced in the House of Commons on 19 January 2011.
28. DH, id., para., 4.23. It will not be an option for NHS trusts to retain their existing status and not to become foundation trusts.
29. J. Tritter and A. McCallum, 'The Snakes and Ladders of User Involvement: Moving Beyond Arnstein' (2006) 76 Health Policy 156, 158.
30. For a detailed analysis of the legislation and policy context, see P. Vincent-Jones, D. Hughes, and C. Mullen, 'New Labour's PPI Reforms: Patient and Public Involvement in Healthcare Governance?' (2009) 72 Modern Law Rev. 247.
31. Local Government and Public Involvement in Health Act 2007 (hereafter '2007 Act'), s. 221(2)(a).
32. The Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002, S.I. no. 3048; 2007 Act, s. 226. The influence of LINks in this sense is dependent on the OSC's decision to take on a case that has been referred to it. OSCs were established by local councils under s. 21 of the Local Government Act 2000, amended by s. 7 of the Health and Social Care Act 2001 (now s. 244 of the NHS Act 2006). The 2001 Act gave OSCs an extended role in reviewing health and social care services. OSCs have powers to request information and summon people before them to explain actions; to examine the efficacy of efforts to involve patients and public; to request action to be taken; to scrutinize any subsequent report; and to recommend an independent inspection of premises. OSCs must be consulted by NHS organizations in the event of proposed major changes to health services.
33. NHS Act 2006, s. 242 (as amended).
34. The effect of the reform is arguably to limit the role of patients and public to that of consumers rather than citizens (compare Tritter and McCallum, op. cit., n. 40, p. 161).
35. 2007 Act, s. 224(1). 'Services-provider' is defined in s. 224(2) as meaning (a) a NHS trust; (b) an NHS foundation trust; (c) a PCT; (d) a local authority; or (e) a person prescribed in regulations.
36. id., s. 234, inserting a new s. 17A (SHAs) and s. 24A (PCTs) into Part 2 of the NHS Act 2006.
37. On the link between the dominant discourse of 'user involvement' and the increasing commodification of basic health and social care needs, see S. Cowden and G. Singh, 'The "User": Friend, Foe or Fetish? A Critical Exploration of User Involvement in Health and Social Care' (2007) 27 Critical Social Policy 5.
38. DH, The Future Regulation of Health and Adult Social Care in England, consultation paper (2006) para. 1.14.
39. J. Lenoble and M. Maesschalck, 'Renewing the Theory of Public Interest: The Quest for a Reflexive and Learning-based Approach to Governance' in De Schutter and Lenoble, op. cit., n. 16, pp. 6-7.
40. C. Propper and W. Bartlett, 'The Impact of Competition on the Behaviour of National Health Service Trusts' in Contracting for Health: Quasi-Markets and the National Health Service, eds. R. Flynn and G. Williams (1997).
41. C. Mullen, 'Representation or Reason: Consulting the Public on the Ethics of Health Policy' (2008) 16 Health Care Analysis 397. For a discussion of alternative democratic rationales for PPI, see C. Mullen, D. Hughes, and P. Vincent-Jones, 'The Democratic Potential of Public Participation: Healthcare Governance in England' (2011) 20 Social and Legal Studies 21.
42. HCHC, Third Report, Patient and Public Involvement in the NHS, HC (2006-07) 278-1, para. 271.
43. DH, A Stronger Local Voice: A Framework for Creating a Stronger Local Voice in the Development of Health and Social Care Services (2006) 4.
44. Tritter and McCallum, op. cit., n. 40, p. 164.
45. A. Weale, 'What is So Good about Citizens' Involvement in Healthcare?' in Healthy Democracy: The Future of Involvement in Health and Social Care, eds. E. Andersson, J. Tritter, and R. Wilson (2006) 38.
46. M. Dent, 'Patient Choice and Medicine in Health Care: Responsibilization, Governance and Proto-Professionalization' (2006) 8 Public Management Rev. 449, at 457.
47. R.J. Gilson, C.F. Sabel, and R.E. Scott, 'Contracting for Innovation: Vertical Disintegration and Interfirm Collaboration' (2009) 109 Columbia Law Rev. 431.
48. C.F. Sabel, 'Beyond Principal-Agent Governance: Experimentalist Organisations, Learning and Accountability', draft discussion paper for WRR meeting, Amsterdam (May 2004) in De Staat van de Democratie. Democratie voorbij de Staat, eds. E. Engelen and M. Sie Dhian Ho (2004) 11:Put another way, the routines make it routinely possible to correct ends through the exploration of means and vice versa ... So we can think of these new institutions as pragmatist in that they systematically provoke doubt, in the characteristically pragmatist sense of an urgent suspicion that their own routines - habits gone hard, into dogma - are poor guides to current problem solving.
49. C.F. Sabel, 'Globalisation, New Public Services, Local Democracy: What's the Connection?' in Local Governance and the Drivers of Growth, ed. S. Giguère (2005).
50. S. Waite and E. Nolte, 'Benchmarking Health Systems: Trends, Conceptual Issues and Future Perspectives' (2005) 12 Benchmarking 436.
51. D. Northcott and S. Llewellyn, 'Benchmarking in UK Health: A Gap Between Policy and Practice?' (2005) 12 Benchmarking 419.
52. J. Ellis, 'All Inclusive Benchmarking' (2006) 14 J. of Nursing Management 377.
53. P. Vincent-Jones, The New Public Contracting: Regulation, Responsiveness, Relationality (2006) 160-4.
54. It should be emphasized that while Polanyi distinguishes between exchange, reciprocity, and redistribution, all are viewed as forms of economic integration which, prior to the advent of market society, together served to structure the interaction of human beings with their environment: see M. Cangiani, 'The Forgotten Institution' (2001) 13 International Rev. of Sociology 327.
55. For a discussion of regulation in the health field, see R. Lewis, A. Alvarez-Rosete, and N. Mays, How to Regulate Health Care in England? An International Perspective (2006).
56. DH, Concluding the Review of Patient and Public Involvement: Recommendations to Ministers from the Expert Panel para. 11.6. (2006)
57. <>. The CQC is currently completing a national study of how NHS and independent sector organizations are engaging with patients and the public, with a view to developing a detailed assessment framework that can be used for future regulation.
58. I. Kennedy, 'Of Regulation' in Learning from Bristol: Are We? (2006) 67. Indicators and measures of improvement are necessary since the cultural changes within and between healthcare organizations that are preconditions of effective reform can only occur gradually. 'Any new organisation, created to carry out a range of complex tasks, will need time to learn and develop ... and will need subtle measurement ... The indicators of success may take a myriad of forms and be hard to discern ... the tools have to be designed.'
59. Appropriately constituted market institutions might serve as a 'tool of government', an 'identifiable method through which collective action is structured to address a public problem': see L.M. Salamon, 'The New Governance and the Tools of Public Action' in The Tools of Government: A Guide to the New Governance, ed. L.M. Salamon (2002) 19. In this account, the greater the reliance on market forces, the more 'automatic' are governance tools in their operation.
60. See, for example, T. Prosser et al., 'Neo-Institutionalist and Collaborative-Relational Approaches to Governance in Services of General Interest: The Case of Energy in the UK and Germany' in De Schutter and Lenoble, op. cit, n. 16; S. Deakin and A. Koukiadaki, 'Reflexive Approaches to Corporate Governance', id.; T. Dedeurwaerdere, 'The Contribution of Network Governance in Overcoming Frame Conflicts: Enabling Social Learning and Building Reflexive Abilities in Biodiversity Governance', id.
61. G. Krippner and A. Alvarez, 'Embeddedness and the Intellectual Projects of Economic Sociology' (2007) 31 Annual Rev. of Sociology 219. I am grateful to David Hughes for bringing this distinction in the literature on embeddedness to my attention.