Approaches to grumbles, grievances, and disputes in the existing law and society literature

Sociolegal scholars have a long-standing interest in the origin and transformation of disputes that can be traced back to the work of legal anthropologists (see for example Llewellyn and Hoebel Reference Llewellyn and Hoebel1941; Hoebel Reference Hoebel1954; Gluckman Reference Gluckman1955; Gulliver Reference Gulliver1963; Nader Reference Nader1969; Nader and Todd Reference Nader and Todd1978; Roberts Reference Roberts1979). Two particular approaches are of relevance in the present context. The first focuses on the journeys that people make to voice and the factors that deter many people from voicing their grievances. In recent decades the naming, blaming, claiming model conceived of by Felstiner, Abel, and Sarat (Reference Felstiner, Abel and Sarat1980–81) has been particularly influential (Albiston, Edelman, and Milligan Reference Albiston, Edelman and Milligan2014; Olesen and Hammerslev Reference Olesen and Hammerslev2021, Reference Olesen and Hammerslev2023a, Reference Olesen and Hammerslev2023b). This model offers a seductively simple framework for understanding complex journeys toward the voicing of a grievance while also characterizing grievances as complicated, subjective, unstable, reactive, and incomplete. The model, which Kritzer (Reference Kritzer1991) has since labeled the developmental theory of litigation, includes several basic elements. “Naming” refers to the emergence of a “perceived injurious experience” (PIE) or subjective belief that something has gone wrong. It is possible to name without getting to the next stage of “blaming.” A person may, for instance, believe that the injurious experience is their fate or a divine punishment. When fault is attributed to a person or institution, naming transforms into blaming. “Claiming” occurs when the person injured articulates their concern to the person or institution they hold responsible and requests a remedy. In their discussion of the agents of transformation, Felstiner, Abel, and Sarat (Reference Felstiner, Abel and Sarat1980–81) argue that the propensity of someone to name and blame is dependent on a wide variety of factors such as personality, beliefs, objectives, prevailing political ideologies, reference groups, and gatekeepers (see also Mather and Yngvesson Reference Mather and Yngvesson1980; Engel Reference Engel1984; Greenhouse, Yngvesson, and Engel Reference Greenhouse, Yngvesson and Engel1994). Progression from blaming to claiming may be rendered unlikely because of fear of retribution, lack of resources, reservations about the likelihood of compensation or redress, and the availability of help and legal representation (Kritzer Reference Kritzer1991). This frequently leads to people failing to pursue their complaint or claim, an action that has become known as “lumping it” (see for instance Nader and Todd Reference Nader and Todd1978; Engel Reference Engel2010).

The influence of this model has been considerable. In their recent celebration of the publication of “Naming, Blaming, Claiming,” Olesen and Hammerslev refer to it as one of the most cited and influential sociolegal articles ever produced (2021, 295; see also Olesen and Hammerslev Reference Olesen and Hammerslev2023a, Reference Olesen and Hammerslev2023b). The conceptual framework it provides has been used to structure a variety of research projects in numerous contexts using a range of empirical methods. These include an analysis of public debate about oil-induced social change in Niger (Schritt Reference Schritt2020), antigay campaigns (Wiethoff Reference Wiethoff2003), sexual harassment in the Australian workplace (Charlesworth, McDonald, and Cerise Reference Charlesworth, McDonald and Cerise2011), how civil justice is perceived in popular culture (Sarat Reference Sarat2000), and a study of lawyers with disabilities (Harpur Reference Harpur2014).

The naming, blaming, claiming model is not without its critics (Kritzer Reference Kritzer1991). Some have suggested that disputes do not necessarily evolve in the order outlined, arguing that people are often forced to claim before they have sufficient information to attribute blame. This has led Lloyd-Bostock (Reference Lloyd-Bostock1991) to argue that the linear nature of the model confuses sequences of reasoning and logic with actual temporal and causal sequences in the formation of beliefs, decision making, and action. In a similar vein, Olesen and Hammerslev (Reference Olesen and Hammerslev2023a) have argued that people constantly (re)name, (re)blame, and (re)claim in ways that do not fit neatly with the notion of a chronology. Others have argued that the notion of “lumping it” suggests a moral imperative to claim and serves to marginalize positive decisions to avoid voicing or disputing because it would disrupt family life or cause psychological turmoil (Mulcahy and Tritter Reference Mulcahy and Tritter1998). It is also the case that by focusing on how grievances do or do not become legal disputes, the model devalues forms of voicing that do not result in a claim. This latter point has given rise to a significant number of studies that have reacted against this court-centric approach and sought to discover levels of unvoiced and unmet legal need (see for instance Genn Reference Genn1999; Pleasence, Balmer, and Sandefur Reference Pleasence, Balmer and Sandefur2013; Flynn and Hodgson, Reference Flynn and Hodgson2017; Pleasance and Balmer, Reference Pleasence and Balmer.2018).

Reflecting on the motivation behind the construction of a linear pathway with a specific point at the end, Austin Sarat has admitted that the model reflected the political concerns of the 1970s:

To which Rick Abel added:

Others have paid more attention to a broader range of outlets for voice, and this has helped to shift the focus away from unilinear explanations of dispute resolution trajectories. Most notably, Albiston, Edelman, and Milligan (Reference Albiston, Edelman and Milligan2014) have called for replacing the pathway metaphor with that of a tree. Their approach takes into account a myriad of avenues for the voicing and resolution of grievances besides the courts,Footnote ⁶ with the branches of their metaphorical tree representing each distinct system, each of which might have different goals and remedies. Albiston, Edelman, and Milligan (Reference Albiston, Edelman and Milligan2014) extend their metaphor further when they talk of a forest in which each tree represents a different sort of dispute such as contracts or discrimination and reason that different forests might represent public and private forms of ordering. What most obviously distinguishes their work from the naming, blaming, claiming model is their focus on broader structures for the resolution of disputes as opposed to individual journeys. In their words:

The sections that follow seek to rise to the challenges posed by Albiston, Edelman, and Milligan (Reference Albiston, Edelman and Milligan2014) by looking at opportunities for the voicing of grievances about the NHS, the different logics that underpin each of them, and the ways in which each system attempts to legitimize its distinctive approach. It also moves beyond they model they propose by moving beyond the focus on dispute resolution to voice. In doing so, it suggests that those using the systems may not want to progress to a dispute and see voicing as an adequate end in itself, or even a success.

A Carcophony of voices? mapping and quantification of opportunities to voice across the nhs

NHS service users have a multitude of opportunities to voice dissatisfaction about care that they have received or failed to receive. The main avenues are medical negligence claims; a formal complaints procedure; an external and independent complaint appeals system operated by the Parliamentary and Health Service Commissioner (PHSO); the initiation of fitness-to-practice procedures run by professional regulators; informal complaints at service level to Patient Advice and Liaison Service units; adverse event reporting systems; dissatisfaction surveys; and NHS-sponsored social media outlets.Footnote ¹⁵ Albiston, Edelman, and Milligan’s (Reference Albiston, Edelman and Milligan2014) tree metaphor works well in this context, not least because the notion of different branches representing alternative systems, criteria for use, procedures, and remedies works well in a sector like the NHS in which numerous routes for the expression of grievances exist (see Figure 1).

Figure 1.

Using Albiston et al.’s (Reference Albiston, Edelman and Milligan2014) Tree Metaphor to Map Systems for Voicing Perceived Injurious Experiences in the NHS.

Examining the operation of each of these systems enhances our understanding of the broader context in which voicing occurs. At one level, the holistic approach adopted allows us to quantify the number of potential disputes rather than just those that become visible in dispute resolution systems. But it also allows identification of the ways in which disgruntled patients might go beyond the use of one system and consideration of levels of satisfaction that exist alongside dissatisfaction with NHS care.

Medical Negligence Claims

NHS Resolution has reported that 14,263 potential claims were notified to them by patients or lawyers in 2018. Of these, 4,482 (31 percent) moved to the end of the naming, blaming, claiming trajectory and became formal legal proceedings (NHS Resolution 2018–19). Among the minority who decide, or are able, to take legal action, rates of attrition are high. Some claims are abandoned by patients when an explanation is offered by a health care provider or compelling evidence refuting a claim is presented to them. In other instances, claims are settled very quickly by the defendant when the evidence against the NHS is clear, or the case is of a type that is notoriously difficult to defend, such as cases regarding failed sterilizations or retained surgical instruments. In 2018, just 120 cases against the NHS, out of over fourteen thousand notified to NHS Resolution, ended up at trial (see Figure 2 below).

Figure 2.

The Number of Medical Negligence Claims and Potential Claims in the NHS 2018.

Other sources of data reveal something of what happens before NHS Resolution are even notified of a potential claim. The UK Association of Personal Injury Lawyers has reported that lawyers turn away up to 85 percent of the potential medical negligence claims that come through their door after undertaking an initial screening (Association of Personal Injury Lawyers n.d.).Footnote ¹⁶ Elsewhere, the UK-based Society of Clinical Injury lawyers have reported that their membership, which is made up of experienced lawyers, currently filter out one hundred thousand clinical negligence cases per year on a pro bono basis. On the basis of their experience, they have concluded that only 3 percent of all cases that reach them are actionable.Footnote ¹⁷

Other scholars have been able to provide an indication of the number of unperceived injurious experiences that underpin these statistics. Charting the journey from unperceived injurious experience to perceived injurious experience is usually so complex that it is rarely attempted by sociolegal scholars. Unperceived injurious experiences are by their very nature often invisible, making them simultaneously part of a critical transformation for us to study while also being the most difficult and costly to research. Cost is less of an issue in high-risk sectors such as health care or aviation where the potential human and financial costs of adverse events can be considerable. This has made it worthwhile to search out these data and led to considerable efforts being devoted to identifying the incidence and types of mistakes made in health care settings. Data for 2018 is not available, but the US-based Harvard Medical Practice Study conducted in the 1990s set the standard by which adverse events in medicine are identifiedFootnote ¹⁸ and its methodology has been copied in similar studies around the world (Brennan et al. Reference Brennan, Leape, Laird, Liesi Hebert, Localio, Lawthers, Newhouse, Weiler and Hiatt1991; Wilson et al. Reference Wilson, Runciman, Gibberd, Harrison, Newby and Hamilton1995, Reference Wilson, Harrison, Gibberd and Hamilton1999; Schiøler et al. Reference Schiøler, Lipczak, Pedersen, Mogensen, Bech, Stockmarr, Svenning and Frølich2001; Vincent, Neale, and Woloshynowych Reference Vincent, Neale and Woloshynowych2001; Davis et al. Reference Davis, Roy Lay-Yee, Ali, Scott and Schug2002; Baker et al. Reference Baker2004; Mendes et al. Reference Mendes, Martins, Rozenfeld and Travassos2009) including the United Kingdom (Vincent, Neale, and Woloshynowych Reference Vincent, Neale and Woloshynowych2001). The Harvard study of over thirty-two thousand medical files discovered a ratio of adverse event to malpractice claim of 8:1. A similar disparity between the number of injurious experiences and the small number of people who pursue a medical negligence claim has been demonstrated in the United Kingdom. Using estimates from the United States and United Kingdom, Towse and Danzon (Reference Towse and Danzon1999) estimated that there were ninety thousand adverse events per annum in the United Kingdom, of which 13,500 involved the death of patients; resulting in just seven thousand claims (8 percent) and two thousand payments (2 percent).Footnote ¹⁹ Gray et al.’s (Reference Gray, Fenn, Rickman and Vencappa2017) more recent longitudinal study focused on the frequency and severity of perceived adverse events in Great Britain over a twelve-year period using a total sample of just under twenty-eight thousand patients. The proportion of respondents reporting that they had suffered some illness, injury, or impairment that in their opinion was caused by their medical treatment or care was 2.5 percent in 2013, compared with 4.8 percent in 2001. The proportion of respondents who pursued a legal claim for financial compensation stood at 11 percent in both 2013 and 2001. These data reveal the size of the iceberg of adverse events and PIEs sitting below the surface of the legal system and provide important baseline data about the number of cases that might give rise to claims capable of being evidenced.

Professional Regulators, the Ombuds, and the NHS Complaints Procedure

Systems for the management of clinical negligence claims sit alongside other formal dispute resolution procedures in the NHS (see Figure 1), all of which are free to use and do not necessarily require the input of a lawyer.Footnote ²⁰ The most restrictive of these procedures are those overseen by professional regulators (licensure boards) and are primarily concerned with whether a clinician has done something that renders them unfit to practice. The total number of complaints made to professional regulators responsible for determining whether a health care professional is fit to practice was 20,963 in 2018. The vast majority of these were directed to the General Medical Council (8,573) and the Nursing and Midwifery Council (5,373). Of these, just 1,614 (8 percent) were heard by a professional misconduct committee with the powers to strike a professional off a register, though warnings and advice can be issued to practitioners without the case having to go through to a full tribunal (see Figure 2).

The Parliamentary and Health Service Commissioner, or Ombudsman (PHSO), has a much broader role than the professional regulators. It is a public body that sits outside of the NHS but is able to review formal complaints that have not been resolved in the NHS complaints procedure discussed below.Footnote ²¹ In 2018, 5,658 complaints to the PHSO resulted in a review of how well the NHS had handled the complaint at service level (see Figure 2) (Parliamentary and Health Service Ombudsman 2018–19). The NHS formal complaints procedure has an even broader remit since patients and their carers have the right to make a complaint about any aspect of NHS care, treatment, or service.Footnote ²² Given its broad ambit, it is not surprising that the system is used much more frequently than other avenues. In 2018 it received and responded to 110,700 complaints (see Figure 3).

Figure 3.

To Show the Number of Grievances Voiced in Formal Channels Other than Litigation.

Despite the fact that the NHS formal complaints system and the PHSO are much easier to access than the litigation system, there is some evidence that health care users remain reluctant to voice grievances through complaint systems. In a large qualitative study in the United States, which evaluated the use of a predischarge complaint surveillance program, 1,233 patient interviews identified 695 instances of dissatisfaction, of which only twelve formed the basis of a formal complaints (Garbutt et al. Reference Garbutt, Bose, McCawley, Burroughs and Medoff2003). In a UK context, a door-to-door survey of 1,637 householders found that while 860 expressed dissatisfaction with some aspect of the NHS care they had received, only 326 had voiced their concerns at service level or written to their health care provider. Only 134 viewed their action as making a formal complaint and just three of those interviewed made a legal claim (Mulcahy and Tritter Reference Mulcahy and Tritter1998). There are many reasons why a common reaction to naming and blaming is silence. Service users may be nervous about the repercussions of complaining to a practitioner they have a long-term and dependent relationship with; they may fear stepping “out of role” by challenging professional workers; or their concerns may be suppressed, hidden, or ignored by busy or defensive staff (Mulcahy Reference Mulcahy2003).

Significantly, looking at parallel systems for the voicing of grievances reveals the potential for patients and their carers to be “bounced” between systems or the branches of Albiston, Edelman, and Milligan’s (Reference Albiston, Edelman and Milligan2014) tree (see Archer et al. Reference Archer, Sam Regan de Bere, Suzanne Nunn, Coombes and Roberts2014). By way of example, in 2018 the PHSO received 112,262 “enquiries” from the public about making a complaint. Of the 29,841 that came within their jurisdiction, 24,183 were rejected, often because the complainant had not gone through the NHS complaints procedure first. The GMC has also expressed concerns about the number of potential complainants who approach them about issues they do not have the capacity to consider. Of the 20,963 complaints made to professional regulators in 2018, just 1,614 (8 percent) got through to a hearing before a professional misconduct committee with the powers to strike a professional off the fitness-to-practice register. The GMC has also expressed concerns about the constant need to redirect complainants to another more appropriate complaint handler. There is no way of knowing whether those diverted to another system make it there, but it seems likely that being turned away by one complaints handler has considerable potential to exacerbate the original sense of grievance and alter thresholds of tolerance in ways that will be significant for the system in which the grievance eventually lands. These factors suggest that looking at complaints procedures across a sector provides fertile ground to understand the many and complex journeys that people make to voice their concerns.

Satisfaction and Dissatisfaction Surveys

It is a common tendency for law and society scholars interested in disputes to focus on negative evaluations of services and in doing so to orient research away from the equally important task of studying social resilience rather than legal actors (Felstiner, Abel, and Sarat Reference Felstiner, Abel and Sarat1980–81; Ole and Hammerslev Reference Olesen and Hammerslev2021). The availability of large NHS data sets and the organization’s interest in positive as well as negative evaluations of care provide an important opportunity to place grievances in a broader social context. Proactive approaches to seeking out concerns are highly significant to law and society scholars because of their potential to remove some of the structural, cultural, and knowledge-based barriers to voicing grievances that exist in reactive systems for the management of complaints, legal claims, or fitness-to-practice procedures. This suggestion is reinforced in a study by de Vos, Hamming, and Marang-van de Mheen (Reference De Vos, Hamming and Marang-Van De Mheen2018), which found that patients who are reluctant to file a formal complaint are more inclined to report their concerns in a patient survey.

The proactive approach to gathering positive and negative evaluations of care manifests itself in a number of different ways in the NHS, but patient satisfaction surveys are of particular value in this context.Footnote ²³ When looking at the extensive range of NHS surveys, each with their own particular approach, it is important to acknowledge that expressions of satisfaction and dissatisfaction are complex and volatile evaluations of service provision that raise a host of methodological issues. Surveys often suffer from a lack of agreement about what constitutes a satisfactory service, and others have argued that satisfaction and dissatisfaction should be seen as different phenomena rather than opposites (Judge et al. Reference Judge, Solomon, Miller and Philo1992; Coyle and Williams Reference Coyle and Williams1999; Lee et al. Reference Lee2010). One example of the complexity surrounding such studies is that in spite of claims about rising levels of dissatisfaction, the British public consistently show considerable loyalty to the NHS as a public institution (Calnan Reference Calnan2000), with dissatisfaction being linked to low levels of funding by the government rather than poor care (NatCen 2015). Nowhere is this broader context more evident than during national elections when any political party advocating a reduction in NHS funding or privatization of the service does so at their peril. Klein (Reference Klein1980) identified the importance of loyalty as an alternative to voice and exit in a commercial setting some decades ago, but it is clear that loyalty is also an important concept in understanding the dynamics of dissatisfaction, complaining, and claiming in a UK health care context.Footnote ²⁴

Despite these reservations, satisfaction surveys provide us with a starting point to grapple with this largely uncharted law and society territory. Of the various patient satisfaction surveys conducted by the NHS, the Friends and Family Test attracts the largest number of anonymous evaluations of satisfaction levels, with nearly 10 million reviews now provided on an annual basis by recent users of the NHS.Footnote ²⁵ Indeed, it has been claimed that the “test” aims to be the “biggest source of patient opinion in the world” (Robert, Cornwell, and Black Reference Robert, Cornwell and Black2018). Data from 2018 shows that, when 9,636,197 users were asked how likely they were to recommend the NHS service they had used to friends or family if they needed similar care or treatment, 311,979 or just 3 percent of survey participants were unlikely or extremely unlikely to do so.Footnote ²⁶ A further 8,913,910 or 93 percent indicated that they were either extremely likely or likely to recommend the service to others.

The Friends and Family Test has been criticized for being a vague measure of satisfaction and one that tends to find much higher levels of satisfaction than other national surveys.Footnote ²⁷ Of the other measures available, the NHS National Patient Survey Programme gathers more nuanced data in the form of five surveys that focus on particularly important services.Footnote ²⁸ Chart 1 shows data from the five surveys combined, providing responses from 163,598 respondents.Footnote ²⁹ Though these data do not produce results that are as dramatic as the Friends and Family Test, they still demonstrate very high levels of satisfaction with a number of key NHS services. When the two tools are compared, it can be seen that a similar proportion (3.7 percent) of 5,982 participants registered dissatisfaction in the lowest three categories of the Likert scale with 115,472 (70.6 percent) registering satisfaction in the top three categories.

Chart 1.

NHS National Patient Survey Program Data for One Year on Satisfaction Levels with Services, n = 163,598.

Beyond pathways and trees: Jurisprudential and nonjurisprudential logics

When discussing the emergence of the naming, blaming, claiming model, Austin Sarat recently acknowledged that “[t]here is a whole world that didn’t exist in [the 1980s] for articulating grievances” (Olesen and Hammerslev Reference Olesen and Hammerslev2021, 298). This section considers the ways in which contemporary debates about risk and governance (Beck Reference Beck and Ritter1992; Giddens Reference Giddens1999) have driven the emergence of new avenues for the expression of grievances about care. The tree metaphor discussed above encourages us to see a variety of dispute resolution systems operating together in pluralistic harmony, but close analysis of what has happened in the NHS reveals that fundamentally different rhetoric or ideologies underpin proactive and reactive approaches to the voicing of grievances. A key question posed in this section is the extent to which systems that allow service users to voice concerns in the NHS sit in harmony or compete with each other. As we shall see, this has implications for the ongoing legitimacy of systems based on concepts of due process or procedural justice.

Systems for managing medical negligence claims, complaints, and fitness-to-practice concerns respond to voiced grievances in ways that ascribe to a rights-based model underpinned by the principles of due process. Each system focuses on the production of evidence, offers an impartial investigation, takes into account the perspectives of all involved, and offers a diet of remedies (see Table 1).Footnote ³⁰ Each system is in turn enmeshed in chains of legal accountability that involve mechanisms for appeal or review. Appeals from the NHS complaints system can be made to the PHSO and their decisions can in turn be subject to judicial review. Appeals from a first-instance medical negligence decision can be made to the High Court or Court of Appeal. Each of these systems also bears the hallmarks of a reactive dispute resolution system in the sense that users retain formal control over decisions to pursue, settle, or abandon their case, though in practice their choices are severely restricted by access to resources.

Table 1.

Systems for Resolving Disputes about the NHS

^* Scotland and Wales have a separate Public Services Ombudsman.

† See Parliamentary and Health Service Ombudsman (n.d.).

‡ Only five judicial review actions against NHS bodies went to trial in in 2018 and included challenges to how a procurement process was run and the lawfulness of policy promoting an unlicensed treatment. For a discussion of all the cases, see https://www.england.nhs.uk/wp-content/uploads/2019/01/09-pb-31-01-2019-litigation-update.pdf.

The common features of these systems allow us to conceptualize them as different branches of the same tree. There is a danger that this vision of pluralistic harmony underplays the extent to which the different systems battle for light and water. This point becomes clear when we attempt to map patient satisfaction surveys and adverse event reporting systems onto the same tree.

Reactive dispute resolution systems are increasingly having to compete for cases and legitimacy with other NHS systems underpinned by a very different logic that focuses on systemic change rather than investigating and responding to the concerns of individuals. In contrast to accounts of legal pluralism that have tended to focus on a state law/non–state law dichotomy, all the NHS systems discussed in this article have their origins in state law and reveal how pluralism can also be present within state-sanctioned services. They provide examples of the ways in which state-sanctioned systems that gather voiced grievances can be heterogeneous, messy, inconsistent, and hard to distinguish from non–state law (Reyntjens Reference Reyntjens2016; Benda-Beckmann and Turner Reference Benda-Beckmann and Turner2018; Sani Reference Sani2020).

If adverse events and satisfaction surveys are not concerned with dispute resolution or redress of citizen grievances, what is their purpose? How is the expression of grievances viewed in these schemes? Clinical governance has its roots in quality assurance, quality improvement, and risk and incident management discourse.Footnote ³¹ These ways of thinking have been transplanted from the private sector, but are now firmly established as desirable, if not essential, ways of thinking within the NHS (Scally and Donaldson Reference Scally and Donaldson1998; Hutter Reference Hutter2005; Vincent Reference Vincent2006). The concept of patient voice features prominently in clinical governance rhetoric and an increasing number of initiatives since the late 1990s have stressed the importance of patient evaluations of care. By way of example, since 2009 the NHS Constitution has pledged that:Footnote ³²

In a similar vein, the NHS Patient and Public Participation Policy, published in 2017 (NHS Public Participation Team 2017), identifies complaints as a resource the NHS can use to attune services to the needs of patients or “experts by experience.” There is now widespread acknowledgment that patient feedback has a significant role to play in the identification of “adverse events,” poor performance, and systemic errors (Reader, Gillespie, and Roberts Reference Reader, Gillespie and Roberts2014).Footnote ³⁴ It would seem that rather than putting up jurisdictional barriers to voice, as research has found is common in the reactive systems discussed above, clinical governance initiatives provide a wide array of outlets that encourage voice. Table 2 provides major examples of such systems.

Table 2.

Examples of NHS Clinical Governance Systems

Note: For further information on patient safety reporting, see https://www.england.nhs.uk/patient-safety/report-patient-safety-incident/#public.

These systems share a common interest with grievance systems in hearing about “trouble” but consider it significant for very different reasons. Writing in the early 1980s, Felstiner, Abel, and Sarat (Reference Felstiner, Abel and Sarat1980–81) argued that it was a rare organization that actively sought out examples of poor performance or mistakes, yet this is exactly what the systems of clinical governance discussed in this section have been doing since the 1990s. In contrast to reactive dispute resolution systems, they actively encourage the voicing of negative evaluations of care. As a result, these systems generate much larger data sets of grumbles, concerns, and grievances that promote a clearer picture of patterns of behavior and the need for structural change. They are oriented toward collective rather than individual needs, sharing an interest in improving the quality of care for all patients rather than those who make complaints or claims.Footnote ³⁵ As such, they could be said to lean more toward notions of systemic, social, or distributive justice than the legal or remedial model that characterizes reactive dispute resolution systems.

The governance model also shifts the focus of how voiced grievances are responded to. It does not involve offering personalized responses as anticipated by the concept of claiming discussed above. By way of example, members of the public can record patient safety incidents using an “e-form,” but this does not result in an investigation of individual incidents, and members of the public who report incidents do not receive a reply.Footnote ³⁶ The system does not require details of the identity of the reporter, patients, health care staff, or other individuals involved in problems to prompt action as a dispute resolution system would. In this way, patients and their supporters are viewed less as citizens with rights to a response and more as valuable providers of organizational data.

It is important to note that the clinical governance systems being discussed did not just emerge in parallel to the reactive or rights-based models in Table 1; they also sought to replace them. Governance initiatives in the NHS can be traced back to the 1980s and have frequently emerged as a reaction to the failings of litigation, complaints, and self-regulation to manage risks to patients or engender change through standard setting (Newdick Reference Newdick2014). Notable among the inquiries that have led to this shift in thinking are the Bristol Inquiry (Kennedy Reference Kennedy2001), Alder Hay Inquiry (Keeling, Powell, and Redfern Reference Keeling, Powell and Redfern2001), Shipman Inquiry (Smith Reference Smith2004), and the Mid Stafford NHS Hospital Inquiry (Francis Reference Francis2010, Reference Francis2013).Footnote ³⁷ Indeed, Liam Donaldson (Reference Donaldson2002), the Chief Medical Officer who did so much to introduce clinical governance into the NHS, has argued that it was these public scandals that prompted a fundamental turning point in thinking about how poor standards should be managed. As the Harvard Medical Practice research team also asserted:

The shift toward resourcing proactive approaches to managing risk reflects a consensus that reactive systems, which focus on punitive sanctions and adversarial confrontation, are often counterproductive in the management of collective risk and harm. Research shows that system design and failure is a more common cause of adverse events in the medical arena than the type of discrete human error by individual professionals that might form the basis of a complaint or claim (Reason Reference Reason1990; Rosenthal, Mulcahy, and Lloyd-Bostock Reference Rosenthal, Mulcahy and Lloyd-Bostock1999). Rather than contributing to the exposure of harm, it has been argued that reactive systems encourage everyone involved in an adverse incident to remain silent for fear of reprisal or punishment (see Reason Reference Reason1990; Department of Health 2000; Kohn, Corrigan, and Donaldson Reference Kohn, Corrigan and Donaldson2000). This raises important questions about the extent to which clinical governance can be seen as an addition to reactive rights-based approaches or a substitute for them. Either way, these initiatives cast doubt on the significance of the role that such systems play in calling the modern state to account.

In between the reactive legal and proactive governance model there also exist a bricolage of approaches to the voicing of grievances in the NHS that sit uncomfortably between the two. By way of example, in addition to resolving complaints made by individuals, the PHSO also shares findings from its casework to help Parliament scrutinize health care provision and help drive improvements in public services and complaint handling.Footnote ³⁸ There is also evidence of model switching within NHS Resolution, the organization responsible for defending medical negligence claims. This organization has created a Faculty of Learning or repository of educational learning products and resources developed by NHS Resolution to support the health service to learn from errors made evident in the course of litigation.Footnote ³⁹ Public and private inquiries, established when the care provided by particular individuals or organizations leads to public concern and loss of confidence, also serve a number of functions that cross the ideal types of reactive conflict management and governance. These include establishing the facts, learning from events, catharsis, reassurance, accountability, blame and retribution, and other political functions such as diffusing tensions (Carlyle Reference Carlyle2019; Walshe and Higgins Reference Walshe and Higgins2002; Walshe Reference Walshe2003).Footnote ⁴⁰ Significantly, they often involve the sort of collective claiming that Albiston, Edelman, and Milligan (Reference Albiston, Edelman and Milligan2014) have argued has been much neglected by law and society scholarship.

Another important example of seepage between traditional reactive systems and the language of risk and quality management discourse can be seen from an examination in shifts in the approach adopted by the self-regulatory professional bodies shown in Table 3. In their work on the GMC, Lloyd-Bostock and Hutter (Reference Lloyd-Bostock and Hutter2008) have charted the various ways in which the discourse of risk-based regulation has begun to emerge in the way the council presents itself to the public.

Table 3.

Systems for Self-Regulation of Professional Groups

Note: In addition to the regulatory bodies included in this table there is also a Professional Standards Authority, which oversees the activity of the other regulators by reviewing every fitness-to-practice decision made. They have the power to refer a decision for review by a court in the interest of protecting the public. Between 2018 and 2019 they considered twenty-two decisions and referred sixteen to the courts, nine of which were decisions made by the Nursing and Midwifery Council.

* There is a separate council for Northern Ireland with largely the same powers.

By way of example, the GMC invites and manages complaints about its members but the sanctions they impose, such as striking off the professional register or fining a practitioner, are not directed at resolution but punishment and are justified by reference to the need to maintain and improve standards for everyone rather than remedy a wrong done to an individual.

The various examples in this section demonstrate the ways in which concepts of clinical governance have come to challenge the focus on rights and individual remedies in the NHS, and even to dominate prevailing discourses and claims to legitimacy among policy makers and senior managers. In doing so, these governance structures draw attention away from the central institutions of the state such as the courts, which easily begin to look monolithic, formal, and lacking in dynamism (Bevir Reference Bevir2012). In this new landscape, voicing of grievances becomes a matter that is of interest to a plurality of stakeholders rather than those with a grievance and the person they hold responsible.

Sticking it to the man? voice as a distinct activity

This final section considers whether there is also value in reorientating law and society scholarship to consider voice as a distinct from the notion of “claiming.” Felstiner, Abel, and Sarat (Reference Felstiner, Abel and Sarat1980–81) say remarkably little about voice in their work, and when it is mentioned, it is conceived of as synonymous with claiming, which is seen as involving a request for a response and remedy. While this conceptualization of voice may work well when describing grievances that become justiciable disputes, it is less useful when used in the context of nonjusticiable disputes or governance systems. By way of example, the anonymous and large-scale nature of the surveys discussed in previous sections mean that individual concerns are not responded to nor tailored remedies provided. Moreover, it seems unlikely that those voicing concerns would expect this. This allows us to imagine the act of voicing as a discrete activity; divorced from claiming, investigation, and resolution of a particular grievance; as more than just one component of an instrumental process that invokes a request for something.

The data drawn on for this article suggests that voice can encompass many different forms of expression, that it is often an incomplete expression of a grievance, and that the mere act of voicing may fulfill a function that goes unnoticed in accounts of dispute resolution and governance procedures. This is most evident from an analysis of the data gathered from a Patient Advice and Liaison Service,Footnote ⁴¹ which suggests that voicing can occur without attributing fault or requesting a remedy. The PALS portfolio is extremely broad, and can involve PALS staff providing responses to health-related questions, assisting in the resolution of concerns or problems, listening to suggestions with a view to service improvement, and advising service users about the NHS complaints procedure.

Chart 2.

PALS Data for One NHS Trust 2018–19, n = 2,494.

The PALS database used for this study recorded 2,494 interactions with service users in 2018–19. Chart 2 shows the reason staff gave for PALS being approached.Footnote ⁴² These data reflect a more nuanced approach to understanding the voicing of “trouble” than is evident from data sets produced by dispute resolution and governance systems. The subtle distinction between the categories of “inquiry,” “comment,” “concern,” and “complaint” indicates a range of ways in which voice can manifest itself that incline toward the negative and positive. In a small way these categories designed by those at the front line make clear the nebulous quality of voice. More particularly, it suggests the hesitant quality of some voicing (inquiry) and its disassociation (comment, concern) with calls for a response. Other research has also suggested that the act of voicing is inappropriately treated as synonymous with attribution of fault or a request for a remedy. This is evident in the dissatisfaction surveys discussed above in which service users participate without any expectation that their particular concerns will be investigated, responded to, or remedied. Moreover, Lloyd-Bostock’s (Reference Lloyd-Bostock and Harris1984) early work on personal injury compensation schemes found that the relationship between the attribution of fault and the desire for recompense is a complex one in which the attribution of fault is a justification rather than a motivation for seeking damages. In a later study of NHS complaints procedures, Lloyd-Bostock and Mulcahy (Reference Lloyd-Bostock and Mulcahy1994) found in their analysis of around four hundred complaints files and in-depth follow-up interviews that 40 percent of formal complaints involved no request for a specific remedy.

Further light can be shed on the phenomenon of voice by looking at a social media site called NHS Ratings and Review alluded to in Table 2 above. Recognizing its capacity to provide new opportunities to name and shame outside of formal grievance procedures, Sarat has argued that social media constitutes the second major example of a phenomenon that did not exist when Felstiner, Abel, and Sarat (Reference Felstiner, Abel and Sarat1980–81) were constructing their naming, blaming, claiming model (Olesen and Hammerslev Reference Olesen and Hammerslev2021, 298). Indeed, it could be argued that revisiting the concept of voice in a social media context allows us to distinguish it from the notion of claiming more clearly than ever before. Digital technologies are having a particular impact in the health care sector where countless websites, blogs, vlogs, and apps provide the public with more information about health care and ways to offer their evaluations of it (Neville Reference Neville2017). Patients can now utilize the Internet to interact 24/7 with service providers, closed groups, or broad public audiences. In addition, there is evidence from the private sector that social media outlets increase the number of complaints received significantly (Sun, Gao, and Rui Reference Sun, Gao and Rui2021). Perhaps most importantly, social media differs from the other channels for the voicing of grievances considered above by facilitating the expression of dissatisfaction to unknown publics in an accessible forum. In contrast to claims and complaints seen only by those involved in a case or its resolution, Rodino-Colcino (Reference Rodino-Colocino2018) has argued that phenomena such as the #MeToo movement have allowed grievances to gather momentum through public empathy expressed as support. In this way, social media sites can collectivize the incomplete information that individuals are not prepared to voice and add legitimacy to the voice of others. In ways that speak directly to the complex early stages of the naming, blaming, claiming model, social media can be transformative in raising consciousness of unperceived injurious experiences for giving legitimacy to the act of voicing.

The “NHS Ratings and Reviews” website encourages informal feedback from service users. Unencumbered by the restraints of jurisdictional boundaries outlined in Tables 1 to 3, it makes possible the anonymous expression of a grievance in ways entirely determined by the person posting. The site can be used to post positive as well as negative comments. In common with the satisfaction surveys discussed above most of the 979 items posted in 2018 and analyzed for this article concerned positive (65 percent) evaluations of care, a figure that is within 5 percent of satisfaction rates for national surveys reported in Chart 1 above. Further analysis showed that people commonly used the website to express their intense gratitude for the care they received with particular attention being drawn to courtesy, politeness, good humor, and respect for dignity. This calls into question the expectation that social media sites will mainly serve as repositories for complaints and criticism (Sun, Gao and Rui, Reference Sun, Gao and Rui2021).

Significantly, those using the NHS Review site are directed to the NHS formal complaints procedure as an alternative avenue to express concerns, but despite this prompt many continue to post their negative evaluations of care on NHS Review. The fact that so many people chose to do so suggests that expressing concerns on this forum has a number of attractions over more formal channels. Given concerns about stepping out of role or fear of retribution discussed above, these might include the ability to voice with a view to venting rather than provoking a response, investigation, or attempt at dispute resolution. Only a small number of posts did any of the work anticipated by the naming, blaming, claiming model. Only 51 (5 percent) of the posts in the sample of 979 indicated that the person posting wanted the NHS to do anything in response. Our analysis shows that getting a response from the service criticized was common; 84 percent of all posts received responses from the health care provider concerned. However, a more detailed examination showed that these were highly standardized. Replies such as “Thank you for your valuable feedback” or “We take all expressions of concern seriously and will take your comments on board” were common. Tailored comments were much more likely to be made when the comments posted by a service user were negative, suggesting that posts carry some reputational risk for the NHS.Footnote ⁴³

While much has been made of the ability of social media to open up extensive public debate, as was seen during the Black Lives Matter and Me Too movements, NHS Ratings and Reviews is better characterized as a mundane backwater of social media. There is very little evidence of anyone posting a message in response to another message or to momentum about a particular issue building across posts over time. This suggests that it is not only high-profile sites, or those in which people interact, that have a value for those who want to voice. Indeed, the lack of engaged responses may make these sites attractive as places in which venting can take place without repercussions. These findings lend weight to the argument that voicing and requests for remedy should not be treated as synonymous. The act of voicing may serve an important function to the individuals involved as a signifier of presence, sovereignty, and agency unencumbered by the stress of awaiting a response, or the expectation that it will be challenged or undermined. Further research could usefully explore the extent to which “stand-alone” or backwater voicing of this kind is seen by those who engage in it as an attempt to cause irritation, facilitate catharsis, heckle, record resistance, or even a defy a perceived source of oppression.