* How do the processes of diagnosis, inference, and treatment in education differ from those in medicine and law, and what are the implications of these differences for "professional accountability?"I cannot answer as to how doctors work on individual cases, other than in a general sense, but I can speak to the legal side of things.
* How does the state of our knowledge about educational diagnosis and treatment differ from that in other professions?
A client comes in the office door with a particular problem. The problem is disrete to them, although they may not, indeed probably are not, the first to experience a similar problem. But each case has a series of facts and events the provide the foundation of the legal problem. The lawyer collects these facts, deduces what other facts may be helpful and then goes to work. Lawyers look at the law, statutes, ordinances and regulations to see if one of those are helpful in discerning how to solve the legal problem. Lawyers may also look to case law, both in the local jurisdiction and even nationally for analogous case that would indicate how that particularly type of legal problem was solved. Lawyers may even to look to cases that involve different subject matters but have a fact pattern that can be made analogous to the current issue. The goal is to look for a pattern of who similar fact patterns were decided and then pursue a similar course of action, with similar arguements.
But the professional judgment of a lawyer also means that they take each case, and treat each client, separately. There may be one or two facts, quirks or twists that are unique and it is the uniqueness of those facts that can be determinative of the outcome of a case.
Doctors do something similar. An illness or injury presents itself in similar fashion in many patients. For example, the flu or a broken arm. These type of cases lend themselves to a common treatment that has proven effective. Like a lawyer looking for common cases and a common solution, doctors look at common cases implement common treatments. However, like each law case, each patient is different, and it is those differences that a doctor has to discover and account. Perhaps you flu patients has an auto-immune deficiency, or is allergic to certain kinds of medicine. Perhaps the boy with the broken arm has brittle bones for a genetic reason. These quirks lead to different treatment plans.
Which brings us to teachers. In essence, a professional teacher would be required to operate much like a doctor or lawyer, when presented with a group of individuals students. Like medical patients whose normal status is healthy, most students would be able to learn in a common manner. However, like lawyers expereince and doctors to a lesser extent, each case must be examined on its own merits and judged accordingly. In a professional context, with teachers as a legally recognized profession, we would have to trust that teachers have sufficient knowledge, skill and professional judgment to examine each child individually, to diagnose the "treatment" necessary and apply that treatment properly. This would mean more than just simple subject matter knowledge, but knowledge of different teaching methods, pedagogies, interventions, remediation and assessment, as well as knowledge of child development, etc. The teacher would have to know and be able to diagnose which little quirk, twist or fact in each child might require a different intervention or treatment. Thus the teacher would need a level of training and minimum competency to demonstrate those skills and knowledge.
Which leads us to Eduwonkette's second question. I am not sure that we are quite there as a society where we have enough data to begin to diagnose problems and prescribe "treatments" or interventions. There are in my mind two reasons for this inability.
First, we don't necessarily have the data systems in place to be able to a) test for potential causes of problems--i.e. like a test that can determine possible reasons for a student's lack of success or b) track the development of a student over time, either a short period or time or a long period of time. I think we have the capability to have such systems--although reliable tests may be a bit further off. But I think we lack the tools to give to a professional teacher to enable her to diagnose a problem, let alone prescribe a solution.
Second, many of our treatments lack the assurance of working even in "ordinary circumstances." By this I mean, there is not even reliable data on the effectivness of many of our common teaching methods, let alone any methods that could or would be described as extraordinary. As such, we can't be sure which treatment to use or whether that treatment would work.
Of course, in law and in medicine, not every prescribed course of action is relevant or effective. But through long periods of work and in the case of medicine decades of scientific struggle, practicioners have learned what works and in what circumstances it works. Yes, some trial and error was part of it, but there is a body of knowledge out there that can be tapped to find information on the outlier, the extraordinary case. Right now I don't see that for education.
In many respects, education as a legally recognized profession is going to have much mroe in common with the law than with medicine. However, there are aspects of both that are present. But simply at this time, I don't see that we have the necessary tools for teachers to exercise professional judgment and certainly lack the resources to give to teachers to act on their judgment.
In the end, I think only teachers will be able to do this.
1 comment:
I think this puts the cart before the horse. It was the idea that people holding themselves out as experts owed their clients a duty of care than a layman working on the same task that drove the state of the art, not the achievement of some level of the art that led everyone to say "now we should have a professional duty of care."
Neither medicine nor law had the capacity for great precision in the identification of client problems or the application of solutions when their higher duty was first recognized in common law. The standard of professional care has never been absolute, but related to the actual state of the art as determined by a jury. Doctors and lawyers were expected to understand the state of the art in their locale - city doctors were expected to have better training, current knowledge and facilities than their country cousins.
Roe v. Minister of Health, an English malpractice case decided in 1954, arose from an incident that occurred in 1947 where a patient was administered anesthesia from a glass ampule. The ampule was defective, with microcracks invisible to the naked eye but sufficient for a contaminat to leak in that ultimately killed the patient.
In deciding for the hospital and the anesthesiologist, Lord Denning said “We must not look at the 1947 incident with 1954 spectacles.” Commenting on the case, Wikepedia notes "It was held that the micro-cracks were not foreseeable given the prevailing scientific knowledge of the time. Thus, since no reasonable anaesthetist would have stored the anaesthetic differently, it was inappropriate to hold the hospital management liable for failing to take precautions. That the profession had changed its practice in the light of experience proved that the profession was responsible in its self-regulation.
The tools teachers have today are far from perfect, but teachers are still in a position to offer substantially better teaching services than lay people. They do hold themselves out as experts - albeit ones overly restrained by management. They can only do as well as the technology available to them, and this would be part of any review of a teacher's professional conduct in teaching.
The duty would be constrained to the extent that teachers were not provided the required tools etc, and the duty itself would be a powerful force to improve the state of the art. So long as teachers perform as reasonable teachers should have performed in the circumstances, they will have met their obligation. The technology argument is entirely a red herring.
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