Abstract
Provided one accepts that there may be a discrepancy between the sociological sphere of the professions and the scope of professional responsibility as an ethical and legal concept, the latter may be rescued from its current maelstrom. Why? Because what calls for distinct, professional responsibility is a feature of the lay-professional relationship -a situational, ‘sense of self’ vulnerability- that is not present in some ‘professional’ occupations (from commercial lawyers to accountants). For as long as knowledge asymmetry continues to be deemed the defining characteristic of the lay-professional relationship, the courts’ delineation of obligations meant to address lay vulnerability will too frequently end up compounding the layperson’s non-epistemic, ‘sense of self’ vulnerability. The proposed re-conceptualisation of professional responsibility calls for reform on several fronts: among these, an expanded ‘duty to consult’ (beyond do-not-resuscitate-orders) is uniquely placed as a justiciable criterion capable of addressing such ‘sense of self’ vulnerability.
Highlights
As a sociological concept, the professions’ remit is necessarily uncertain: it is constantly renegotiated as more and more occupations strive to be recognised as a ‘profession’
This section contrasts these two ‘inherent’ forms of vulnerability with a situational, ‘sense of self’ vulnerability which has not, so far, played as important a role as it should when it comes to delineating the obligations that stem from professional responsibility
The knowledge asymmetry that prompts the need for expert service providers often leaves those resorting to such experts in a position of epistemic vulnerability, which is exacerbated by the difficulty inherent in establishing an expert’s credentials
Summary
The professions’ remit is necessarily uncertain: it is constantly renegotiated as more and more occupations strive to be recognised as a ‘profession’. While some domains—such as education—are stuck with inadequate responsibility practices, novel occupations that ought to be held to different responsibility standards are treated in the same way as generic service providers The roots of this haphazard delineation can be traced to several factors: historically, the concept of professional responsibility has never really recovered from its entanglement with some ill-advised ‘professionalism’ rhetoric. Does this approach provide no rationale for distinguishing between the responsibility that arises from a commercial lawyer advising me on a company acquisition and that of a GP helping me deal with a chronic illness This lax understanding is at the root of the fact that professional obligations designed to address lay vulnerability (such as disclosure obligations) frequently end up compounding the layperson’s non-epistemic, ‘sense of self’ vulnerability described above. Aside from its impact on lawyers, educators, clients, pupils and their parents, the courts would, at long last, have to put an end to what Herring refers to as their ‘binary approach’[6] to vulnerability
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