Judgement day for dentistry experts

July 7, 1995

The High Court decision in the Institute of Dentistry case puts responsibility on the shoulders of individuals as well as the committees they form, G. R. Evans says.

Up to now it has been been virtually impossible to overturn a decision resting on "academic judgement". A case about procedural defects might get somewhere, but it has been no good saying that expert judgement has been at fault.

It seems that a new principle has now come into play which may change all that. A judgement, academic or not, cannot be just if it is unreasonable. So there must be a case for asking the reasons for it. It looks as though the law may now begin to do so.

In July 1994, the Institute of Dental Surgery sought judicial review in the High Court of the refusal of the Higher Education Funding Council to give reasons for its decision to downgrade the institute in the research assessment exercise.

The judgment criticises the defence's argument that there was no possibility of "'disaggregating the collective view' when that view was an aggregate view in the first place'". It points out that "to suggest that the panel's conclusion cannot be explained without 'undermining the whole purpose of a peer review assessment'" can only "devalue the assessment process". It notes sharply: "It would take a great deal more than this to persuade us that experienced and distinguished academics, whether individually or collectively, cannot assign reasons for their own judgement."

The thrust of this is to place responsibility for accounting for decisions on the shoulders of individuals as well as the committees they form. The judgment presses the point that each panel member will have had reasons for his or her own initial rating, and in discussion each will have been in a position to advance those reasons and to modify them in the light of the reasoning of others.

In the course of a committee's discussions, mixed motivations affect the "reasoning". The fair-minded are sometimes persuaded to change their minds. The intransigent do not budge. Someone gets cross with someone else and resolves to vote against him. The self-seeking see avenues of personal advancement or advantages to be gained by taking one side or the other.

So a vote taken at the beginning will not necessarily be the same way as one taken at the end. And the final vote will not necessarily be more right, either in the sense of "just" or in the sense of "correct", than the first.

A skillful chairman can arrive with the decision planned and make sure he gets it. Anyone who has sat on a committee knows all this perfectly well.

It would be hard to demonstrate consistency across the system in many areas where an institution of further or higher education has to make decisions involving academic judgement.

In this case, "the funding council, a modern body charged with important functions and recognising, as the council does, the need for uniformity and consistency of approach, did not work by agreeing the criteria by which it would judge . . . , so that each panel member might before and after discussion make an evaluation within an agreed range on each criterion . . . On the evidence no such criteria of assessment existed."

Now devising criteria with which no reasonable experienced professional could possibly disagree is not easy. One university's definition of what constitutes effective teaching sets side by side having clear objectives which are consistent with course aims, and stimulating interest and encouraging independent learning.

I think it can certainly be argued that stimulus to independent learning is logically incompatible with remaining steadfast to course aims. But not even to attempt to be consistent is culpable on an altogether grander scale than merely failing to get it right.

The judgment says that industrial tribunals and courts have come to appreciate that such a procedure enables evaluation to be carried out on a basis of parity both among panel members and among candidates. This provides a uniform foundation for different evaluations and makes the eventual collective evaluation both explicable and defensible, so that if the law calls for reasons to be given, they exist and do not have to be called into being.

It adds: "Parenthetically, such a procedure also enables candidates, successful as well as unsuccessful, to be told why and in what areas they have done well or badly; information which may be as important to them as their actual rating."

Only perhaps in Euclidean geometry do we have a perfect demonstrative method, and even there it all depends on accepting the axioms and postulates. In fact if reasons have to be given it is to be expected that some will disagree with them.

If the presumption has been that professional opinion has a certain sanctity, a "protected" quality, then it is hard to see why that should not also apply to the judgement of those academics who dispute it, even if, and perhaps especially if, they are affected in their prospects by it.

The old "academic judgement" principle protected honest difference of opinion. But it allowed judgement influenced by prejudice against the type of work, or, worse, against the person concerned, or simply by ignorance, when a dimension of the work concerned falls outside the competence of the academic judge or panel of judges to shelter under the same umbrella.

Yet it would be dangerous to assume that the opinions of those who happen to be in power or to have authority over others are necessarily always better.

I fear that there is some muddled thinking about confidentiality. Legal protections of commercial confidentiality exist to safeguard competitiveness and profits.

Confidentiality of medical records is protected to prevent invasion of privacy. There are other protections of confidentiality designed to serve the public interest.

But the confidentiality involved here would seem to be designed to protect the members of the academic committee from having their judgement questioned either by those their judgements affect, by officers above them in the university hierarchy or indeed by the public.

It fits none of the above categories and would now seem to lack any legal sanction in the light of the High Court judgment in the Institute of Dental Surgery case that it can be reasonable to ask for reasons to be given when academic judgements are made.

Moreover, one might argue that those who have no reason to fear their reasons being known have no reason not to be open.

G. R. Evans lectures in history at the University of Cambridge.

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