Access to Legal Services: Lessons from the Medical Profession (Part 2 of 3)

By: Devin Johnston · September 14, 2009 · Filed Under Pro Bono · Comments Off 

This is Part 2 of a three-part series on the topic of access to legal services. In Part 1, I argued that the traditional approach to ensuring access to legal services (that is, increasing the number of lawyers doing legal aid or pro bono work) is inadequate on its own. The reason for this is that there is a fundamental mismatch between the number of practising lawyers and the demand for legal services in Canada. Moreover, it is unlikely that increasing capacity in law schools will be sufficient to meet the shortfall. For these reasons, governments and lawyers need to pursue alternative strategies to ensuring access to legal services.

In today’s instalment, I want to turn my attention to the history of health professionals (particularly the emergence of professional nursing). As I will argue, the health services sector has long faced similar challenges to the legal community in terms of balancing the need to increase the availability of service without compromising quality of service. However, unlike the legal profession, the health sector has embraced a realistic and flexible strategy that has served it well for more than 100 years. The premise of this strategy is to reject the proposition that doctors are the exclusive providers of health services; instead, the health sector embraces a myriad of other health professionals including nurses, pharmacists, physiotherapists, and others. As I will argue, this provides an excellent template for legal services, particularly insofar as it provides for a robust model of oversight, accountability, and quality control.

The legal and medical professions have always faced similar challenges: both are self-regulating professions characterized by specialized knowledge and skill in their respective fields and also by a responsibility to the community that overrides personal interest. In the name of maintaining high standards of service and professionalism, both lawyers and doctors have found the need to be restrictive in terms of which people are admitted into the profession. In order to become a lawyer or doctor, not only must a person follow a rigorous course of academic study, but also demonstrate practical skill, moral goodness, and respect for the profession itself.

Yet despite these similarities, the medical and legal professions have diverged significantly on the point of being exclusive service providers. Lawyers have been extremely hostile toward any attempt by outsiders to provide any kind of legal service or advice, resulting in a professional monopoly. In contrast, doctors have learnt to embrace a health services sector occupied by a diverse group of different health professionals. This raises two questions that I would like to explore. First, what caused the divergence between the professions on the issue of exclusivity? Second, which model has been more successful in terms of balancing concerns of access to service with concerns of quality of service?

I believe that the answer as to why the divergence occurred comes down to two major factors. First, health services are more “natural” in the sense that even non-professionals perform health services from time to time. Second, the great wars of the early 20th century created an incentive for the state to promote an expansion in the capacity of health services.

Human being have, in one sense or another, always performed health services. Even among non-human animals, there is considerable evidence for members of a species caring for one another and tending to each other’s wounds. This fact, combined with long-held assumptions about gender essentialism, meant that even during the rise of professionalized medicine, there were always people (especially women) performing services similar to those of doctors, whether for payment or in the home. By contrast legal services derive from social constructions such as the state, the rule of law, and a system of courts to enforce legal rules. These social constructions do not exist in nature; for that reason it continues to be uncommon for non-lawyers to look after each other’s legal affairs in the same way that we look after each other’s health and well-being.

The turning point in terms of the professionalization of non-physician health providers came in the early 20th century, particularly during World Wars I and II. Because of technological advancements, these wars were unlike any other in earlier human history in the sense that combat was more frequent and prolonged. In earlier wars, there were often significant gaps in time between battles as armies moved very slowly from place to place. As a result, soldiers with relatively minor injuries had more time to heal naturally between battles. In the early 20th century, gaps between active conflict were shorter and the battles themselves often lasted longer, meaning that soldiers with relatively minor injuries had less time to heal before being pressed back into active combat.

As a result of these factors, the states engaged in warfare suddenly had an interest in increasing their capacity to deliver medical services in conflict zones. Strategically, the side that stood the best chance of winning was often the side that was best able to patch up its wounded soldiers quickly and send them back into the field. One way to accomplish this would be to increase the number of doctors serving on the front lines in conflict zones. Unfortunately, such efforts met with two roadblocks. First, there was an extremely limited number of qualified physicians and it would be impossible to train more in a timely manner. Second, it would be difficult to persuade physicians making a comfortable living at home to serve in danger zones at a lower rate of pay (the conscription option carried significant political consequences and would be considered as a last resort only).

The solution to the shortage of doctors on the front lines was to turn to women. Women were ideal candidates to perform front-line medical services for two reasons. First, social realities and assumptions about gender essentialism meant that women were considered “naturals” at caring for others including the young, the elderly, the sick, and the wounded. As such, it was believed that it would be relatively easy to train women to treat minor injuries. Second, women had very limited work opportunities in that era, meaning that they could be paid extremely low wages compared to doctors.

When the wars ended and the men returned home, many of the women who had broken into the workplace during the war remained. Despite sexism and attempts to force them back into the home, the economic reality was that women’s lower wages gave them a competitive advantage in the market. It is no coincidence, then, that the early 20th century saw more and more women entering health services, primarily as nurses, but also increasingly as doctors. Unable to prevent women’s entry into the market, the best the medical establishment could do was to regulate nursing by creating formal qualifications, clear limits on a nurse’s job responsibilities, and standards for quality and competence. Some key dates in this period of professionalization include:

  • 1901, when New Zealand became the first nation to regulate nursing nationally;
  • 1908, when the United States Navy Nurse Corps is established;
  • 1916, when the Royal College of Nursing was established in the United Kingdom; and,
  • 1919, when the United Kingdom passed the Nursing Act, which provided for registration of nurses.

Over time, the gendered hierarchy of the medical profession began to break down, as more and more women became physicians and more and more men became nurses. While there is still a significant gender disparity in both professions, the gaps continue to narrow year over year.

The two factors that I have identified in the evolution of nursing have been missing from the history of the legal profession. First, it is uncommon for non-lawyers to contemplate providing legal services in the home; for this reason, we are more likely to think that the rigorous academic studies undertaken by law students provide the only sound basis for providing legal services. Second, there has never been a war in which the outcome depended in any significant way on the number of legal service providers on the front lines. Thus, if the legal profession is to follow the example of medicine, the lawyers themselves will have to reject their roles as exclusive service providers.

The next issue that merits attention is whether the fragmentation within the health services sector has, on balance, been more successful than the monopoly in the legal profession at balancing access to service with quality of service. I argue that it has, which is not particularly surprising given the crisis facing the legal community in terms of access to service.

The fragmentation of the health service has been so successful in industrial societies that it has increased both in scope and in scale at an extraordinary rate. As of 2008, there were 16,126 active practising nurses in Manitoba compared to just 2,272 licensed physicians. These health professionals are complemented in their work by thousands of others including pharmacists, physiotherapists, technicians, and scientists.

Like other professionals, nurses are self-regulated based on a public accountability model. In Manitoba, for example, Registered Nurses (RNs) are governed by the College of Registered Nurses of Manitoba, as established by the Registered Nurses Act and its subordinate regulations. The College plays a role in establishing the registration process to ensure quality and competence, establishing best practices and standards, helping nurses to meet those standards through continuing education, and enforcing rules through a disciplinary board. This structure should sound familiar to lawyers, because it mimics other self-regulating professions including law societies and colleges of physicians.

While there was initially some concern that nurses would be unable to provide the same high quality service as physicians, those concerns have largely fallen by the wayside in light of the high level of competence and professionalism demonstrated by nurses over the years. In fact, a 2004 Gallup survey revealed that a higher percentage of respondents expressed “high” or “very high” trust in nurses (79%) than in medical doctors (67%). For the sake of comparison, lawyers were among the least trusted with only 18% of respondents expressing “high” or “very high” trust.

In addition to vertical fragmentation (that is, tiers of hierarchical qualification), the health sector has also embraced horizontal fragmentation (that is, areas of specialization within each tier). In Manitoba, for example, there are several different types of nurses including registered nurses (RNs), registered psychiatric nurses (RPNs), and licensed practical nurses (LPNs). Moreover, registered nurses may obtain an extended practice or nurse practitioner designation, allowing them to offer additional services. The colleges of nurses provide detailed guidelines on the roles, responsibilities, and qualifications required of each different type of nurse, as well as disciplinary boards that enforce the standards for quality and professionalism.

This model is extremely flexible in that it simultaneously promotes both access to service and quality of service. While recognizing the need for well-defined qualifications and professional standards, it acknowledges that the completion of medical school may not be necessary in order to provide patients with certain types of services. As a result, it is easier to train and employ a larger number of nurses to complement the work of physicians and thus to increase the province’s capacity to deliver health services to the public at a lower cost than simply training and hiring more physicians.

I think that the legal profession can learn at least 3 important lessons from the evolution of nursing:

  1. it is possible to end professional monopolies and still maintain high quality of service, provided proper oversight and accountability measures are in place;
  2. a full and expensive professional education is not necessary in order to provide limited services within a well-defined area of competence; and,
  3. the cost of training service providers may be lower if that education is specialized rather than general in nature.

In light of these lessons, I think the conclusion to be drawn is that the lawyer monopoly must come to an end in order to meet the challenge of rising demand for legal services. By creating new forms of qualification that are less than those of a lawyer, we can create discreet new job classes that are qualified to perform a limited set of legal services.

In Part 3 of this series, I will explore some case studies that reveal that the fragmentation of the legal profession is already taking place; that is, there are already a significant number of non-lawyers performing jobs that include statutory and common law interpretation, providing legal or practical advice to clients, and even representing clients before administrative tribunals. Using these examples as a starting point, I will posit a non-exhaustive set of proposals to create new formal job designations that incorporate educational prerequisites, standards of competence, a code of professional conduct, disciplinary boards, and an accountability model that clearly delineates the limits of areas of competence of non-lawyers. Finally, I will address some possible objections to my proposals and discuss the practical realities of getting such proposals implemented in Canada.

Access to Legal Services: Lessons from the Medical Profession

This post is Part 2 in a three-part series. Links to the other portions are found below.

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