a project level in construction, this can improve working relationships between “The globalisation of market economies, facilitated by developments in information partnership as the models for commercial success, and demand a more trust-based . construction projects will evidence some forms of relational contracting. A large and growing literature has pointed to the importance of trust as a Evidence of trustworthiness that may surface over project time can then Relational contracting is therefore akin to a domestic market (cf. The recommendations built upon studies about collaborative relationships between Toyota and its suppliers. vatism in loan contracts with accounting-based covenants. In the . These results provide evidence that the relationship between loan spreads and where X is earnings scaled by lagged market value of equity, R is the annual cumulative.
Each party in the contracting relationship may have other constituents e. This perspective draws attention to the important influence on the contractual relationship of the wider institutional context in which an individual purchaser—provider relationship occurs.
This view of contracting is informed by political science, where the relationship between purchaser and provider is pictured as akin to international relations between states.
In order to insulate themselves from being accountable to so many different players, purchasers have a tendency to resort to complicated procedures and regulations. While trust at an individual level between purchaser and provider is an important component in contractual relationships, decisions informed by an assessment of the risk involved in contracting may also be based on how generally sympathetic the actors feel towards the institutions involved.
This approach is particularly applicable to complex policy interventions, such as implementation of health-care contracts, where there are multifactorial outcomes, and the causal chain between the agent and the outcome is neither short nor simple. Figure 1 provides an aggregative synthesis in the form of a logic map of the various concepts and relationships we identified in our review of theory.
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In the next section we provide the institutional background of general dental practice contracting, with a contrast with the general medical practice context. The logic map highlights the factors which we identified as particularly pertinent to our study.
This is described as a professional partnership model, 35 whereby dentists do not just own the business and govern the firm, but also provide professional services. Among the 11, dental practices in the UK, a significant number one-third are solo practices, where just one principal dentist owns the practice and provides care.
Moreover, in recent years a relaxation of regulation has allowed practices to be owned by external commercial organisations Dental Bodies Corporate, DBCs. There are now several large chains of bodies corporate, which trade on the stock market and own upwards of practices each. In the case of dental practice, principals own the premises; employ their own staff [associate dentists where there is a subcontracting arrangement to other dentists within the practicenurses, hygienists, therapists, practice managers, etc.
The medical practice model is similar: General dental practitioners carry a greater financial burden concerned with owning practice assets than do GMPs. The government contributes to the cost of medical practice premises, but not for dental practice premises. The costs involved are then incorporated into the sum of practice overheads, and reimbursed through the dental remuneration scheme e. The financial risk concerned with falling levels of property value rests solely with the GDP. Prior toGDPs therefore worked to build up a loyal following of patients which was subsequently recognised in financial terms when their practice was sold.
The contractor shall not give, sell, assign or otherwise dispose of the benefit of any of its rights under this contract, save in accordance with the contract. The contract does not prohibit the contractor from subcontracting its obligations arising under the contract where such subcontracting is expressly permitted by the contract. While commissioners argued that this was not strictly true, they did acknowledge that, because NHS dental contracts were personal contracts between the parties, a successor contractor could not be assigned by the practice wishing to sell.
Instead primary care trusts PCTs were to end one contract and decide whether or not to issue a new one in order to replace the lost dental workforce capacity but this could be at a different level and location from the previous contract depending on local needs and priorities. In the medical practice model, capital assets are shared with purchasers. Under the private finance initiative, medical practice premises may be developed by private sector consortia and leased to the PCO, with the consortium, not the NHS, retaining the ownership at the end of the lease.
Premises provision is inextricably linked with government policy and strategy in primary medical care. PCOs have explicit responsibilities to prepare a general statement of need for medical premises and a strategy for property management. Medical practitioners have to take account of their local PCO strategy on premises development, which may restrict their options about how and where to practice. Some [PCOs] may use this opportunity to exert greater control over premises provision, thereby reducing the control of the GPs [general practitioners].
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Ina three-part payment system was introduced for GMPs, comprising a basic practice allowance, capitation fees and payments for designated items of service such as contraception and immunisation. Additional practice allowances included loans and grants for the construction and improvement of practice premises, reimbursement to the practice of costs for employing nursing or ancillary staff, and allowances to encourage GMPs to undertake vocational training and work together as groups.
Water rates for medical practices are reimbursed by commissioners, and the PCT owns and technically supports practice information technology systems. Through NHS Purchasing practices benefit from economies of scale across a wide range of products. By contrast, the same extent of financial support and ownership does not exist in dental practice.
The GDP contract in the s, by contrast, remained a FFI contract, with no additional allowances paid to support development of premises or the team.
Development of skill mix within dental practice teams has never been directly incentivised in association with additional allowances to any significant extent; instead, any broadening of the use of skill mix has been driven by some principal dentists adopting a team philosophy themselves, and using their general practice income and discretion over the employment of staff and task allocation to pursue this vision. Dental provision is particularly highly asset specific, with a significant investment of premises and equipment necessary for new entrants to the market, and this may raise a barrier to entry for smaller enterprises.
The usual market response to asset specificity is the negotiation of longer-term contracts that include risk-sharing arrangements between both purchaser and provider 43 — a mechanism which has not been used in the context of NHS dental contracting.
There are, though, indications that the extent to which GDPs have a financial interest in their premises is important, and probably an important distinction between GDPs and GMPs.
Independent contractor status is defined as where the payer has the right to control or direct the result of the work done, but not what will be done and how it will be done. A structure with legitimate authority, with a manipulable incentive system for adjusting costs, quantities and process, with a structure with dispute resolution and with a set of standard operating relationships, works very much like a hierarchy, very little like a competitive market.
We considered the contract as a focus around which negotiation and discussion occurs, and not a means of governance and change which is limited to contract design issues. We therefore considered that the extent to which hierarchical governance sits alongside market governance could be an important difference making general dental practice contracting distinct from GMP contracting.
Straddling public and private spheres The independent contractor status of GDPs and GMPs has meant both types of practitioners have developed commercial and entrepreneurial as well as professional identities, although their relationship with the NHS has meant that they are distinct from private limited companies and thus straddle public and private spheres.
GMPs are free to generate income from private practice or commercial contract work, provided 1 they meet their NHS commitments to provide the range of essential, enhanced and out-of-hours services the practice is contracted to deliver and 2 they do not charge their registered patients for services they may offer that are not available, or are available only in limited circumstances under the NHS e.
These include 1 examinations and reports for medico-legal purposes e. Legislation allowing patient charges for dentures, which were roughly half of the total cost, was enacted inbecoming the first charges of any kind to be levied for NHS care. This set a precedent for copayment, which has been a feature of NHS GDS care ever since; the proportion of care paid by the patient has grown steadily over subsequent years although certain groups such as children, pregnant women and those on state benefits remain exempt.
Contracts in general dental practice The evolution of the dental practice organisational field Institutional work studies analyse organisations, fields and logics from the perspective of not just the service delivery level e. In doing so they often find that organisations are sites of struggle.
Several logics for definition see Chapter 3Institutional logics and general dental practice as an organisational field can coexist within an organisational field, although one is generally thought to be dominant. The following section outlines some of the key events which have prompted change and struggle within the dental practice organisational field for a summary see Appendix 3. We start with the s, since, from the s onwards, professions faced challenges from a political era of NPM, with dentistry being no exception.
Between and By the end of the s the government had instituted an internal market in the NHS, with attention focused on maximising efficiency, quality and consumer responsiveness. Although organisational restructuring associated with the implementation of an internal market did not affect dental practice directly at the time, the underpinning political philosophy and environment of budget restraint did have an impact in several ways.
Free dental examinations were abolished. Providers saw this as a breakdown event, set against a background of improving dental health in the population, where numbers of dentists were out of proportion to need, and competition for patients was becoming a concern for dental practitioners. At the same time there was a growing voice of consumerism; rising patient charges, with media reports portraying dentists as overprescribing, culminated in the Schanschieff report into unnecessary dental treatment.
Between and A new dental contract introducing an element of capitation to a previously exclusively FFI system of remuneration precipitated a haemorrhaging of practitioners from the NHS and a shift to private provision. There were reports of one in five dentists pulling out of the NHS for non-exempt patients, shifting the balance of their practice to private work.
Expansion of private dentistry, which required marketing and selling of dental services, and a consumer focus, meant many practices becoming overtly commercial.
Following a remuneration review by Kenneth Bloomfield, 59 and an enquiry by the House of Commons Health Select Committee, 60 the government published a response in outlining alternative options for remuneration that favoured setting up local purchasing systems sensitive to regional differences in needs.
The previous FFI and capitation arrangements had both been administered centrally from a national budget, whereas PDS contract terms and monitoring of performance were undertaken locally and involved local purchasers. PDS pilot arrangements structurally changed the organisational field with the creation of a new central actor — the purchaser — set within quasi-market structures.
Between and Inclusion of purchasers was more widely instituted in the organisational field with the passing of the Health and Social Care Bill.
Budgets were devolved to a local level and PCT commissioners charged with procuring dental services to meet the needs of local populations. Practices were encouraged to transfer voluntarily from the GDS centrally managed system into local contracts with commissioners, until in the previous system was abolished and all remaining practitioners forced to transfer into the new arrangements.
That year also brought a change in dental contract currency, with the FFI replaced with a system based on bands of activity: Corporate governance and form in the neoliberal era Neoliberalism is characterized by a distinct epistemic and social order when it comes to corporate governance and corporate form. However, what really distinguishes neoliberalism from laissez-faire is the emphasis on contract and contractual relations over and above fictive natural market ones; that is, the market is conceived as a series of contracts and not price interactions or cost calculations.
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This enables anything to be remade as part of the market in neoliberalism since everything can be turned into a contract e. Transaction costs are described as the costs of contracting e. Neoliberal scholars developed this contractual perspective through their direct engagement with the theory of the firm; for example, the likes of Jensen and Meckling and Fama have very explicitly identified corporations as a nexus of contracts between contracting parties e.
In so doing, they assume a number of things: Markets are efficient Fama, This contractual perspective seeks to reframe internal transaction costs e. What this contractual perspective helps explain is the contradiction in neoliberalism highlighted above — that is, between an emphasis on the market and the legitimation of monopoly.
Here I outline three ways that the co-production of corporate governance and corporate form in the neoliberal era has come to legitimate corporate monopoly: It has involved a new view of corporate identity and personality.
There has been a resurgence of the aggregate or contractual view of the corporation, which had briefly flared up at the end of the nineteenth-century Harris, ; Gindis, ; Veldman, This resurgent conception of the corporation is based on the idea of the firm as a nexus of contracts, outlined above, as well as a legal fiction Bratton, Unlike the nineteenth-century version, however, it treats contract as the basis of market interactions cf.
It thereby legitimates the market-distorting power of corporations by imagining the corporation as a collection of disparate and different market actors who are contracting with one another. From this perspective, a large, monopolistic corporation is no longer a problem for the functioning of the market because it is actually and merely a group of individuals contracting with one another, not a massive and powerful entity in its own right.
Thus the corporation or firm is theorized away, according to Bratton It has involved new forms of governance and control. These trends were accompanied by the growth in the economic and market power of institutional investors themselves see Deakin, ; Davis, ; Dobbin and Jung, ; Soederberg, This eventually fed into the adoption of specific governance mechanisms.
Some were internal e. This transformation reflected a broader shift from managerial capitalism — associated with the embedded liberalism — to shareholder capitalism and was tied into wider trends in the reconfiguration of predominantly American business schools; this involved a reorientation around fields like finance and objectives like shareholder value as curricula increasingly incorporated principles from financial economics Khurana, ; Fourcade and Khurana, ; Locke and Spender, It has involved a new view and implementation of antitrust regulation.
What Davies highlights is the way that economic theory — especially notions of transaction costs derived from Coase see above — informed a shift in antitrust laws in the USA that contrasted with earlier critiques of corporate monopoly see Barkan, The focus on nexus of contracts meant that business organization — and hence corporate monopoly — could be cast as more efficient than the market where economies of scale led to reduced consumer prices Davies, Whether this transformation of antitrust was driven by epistemic claims or corporate power is difficult to untangle.
The evolution of corporate governance and form. This discussion implies that the co-production of neoliberal epistemic and social orders is based, in part if not whole, on the conceptualization of contractual relations as equivalent to market price interactions, such that neoliberalism — as a supposedly market-based order — is made compatible with monopolistic business formations, which are treated as markets in themselves.
The key point to emphasize is that contract actually trumps price or cost as the epistemic basis for thinking about the market within neoliberalism, at least when it comes to corporate governance.
Moreover, Letza et al.
Now, my point is that the implications of this contractual-based epistemic and social order are important, not only when it comes to analyzing the evolution of corporate governance and corporate form see Table 1but also when it comes to understanding neoliberalism as an analytical category used to criticize certain forms of political-economic decision-making.
It is to these analytical issues that I turn to next. Neoliberalism as a contract-based analytical concept and category Neoliberalism, contract and contract law As Crouch outlines, competitive and free markets are theoretically incompatible with the organization of any economic activity, in whatever form. On the one hand, a strong version of this claim would problematize any form of contractual regulation and management of economic activity within an organization since this entails forms of hierarchical rather than market coordination — that is, according to the work of people like Coase and others on transaction costs.
Obviously this strong version is incompatible with twentieth and twenty-first century capitalism in which over half of all economic activity takes place within organizations and not markets Hodgson, On the other hand, a weak version would stress the market distorting power of large, monopolistic organizations e.
Hayek, Friedman, Ropke, etc. This would imply that a neoliberal, market-based order would be incompatible with business monopoly; yet this is far from the case, both empirically and conceptually. While this paper has not addressed the former, it is not due to a lack of evidence to support the idea that economic and market power has become increasingly concentrated.
To start, it is important to note that contract and contractual relations are central planks of neoliberal thought — many early neoliberals, for example, were lawyers or interested in law — and, hence, it underpins their conceptions of social order.
What he means is that free social interaction i. For example, several critics of neoliberalism have sought to show how neoclassical economic ideas have infiltrated legal scholarship, with the clear example being the law and economics movement developed at the University of Chicago e. These critics show how economic analysis has come to influence concepts and principles in the law itself. While this is important work, it is not my focus here. Rather I want to consider neoliberalism as a contractual theory — not simply a market-based one — by examining the relation between neoliberalism and contract law Zamir, First, it is possible to conceive of neoliberalism as a contract-based order in light of the contractual theories of the firm, corporation and corporate governance outlined in the previous section e.
In particular, Weinstein argues that the new contractual theory of market relations developed by the likes of Jensen and Meckling was meant to frame the firm as the market; this is evident in subsequent positive and normative claims about proper corporate governance and corporate forms.
Let us say that there was a shift from a representation of the market order as a multilateral system of simultaneous, anonymous relations to a representation in terms of bilateral relations that are necessarily personal, and from coordination through prices and equilibrium to coordination through negotiation and contracts. This made it possible to reduce the opposition between market and firm, or even reduce the firm to a particular market.
Famously, Jensen and Meckling According to Weinsteinthis view enabled Jensen and Meckling to align their contractual theory with an organizational structure, namely the firm or corporation — sometimes the distinction is not well made in this corporate governance literature ; however, they did not argue — merely assume — that the contracts constituting the firm represent a market structure.
Second, the idea that all business transactions are only or mainly discrete, one-time interactions seems incongruous. Ongoing, relational contracts — highlighted in the literature on trust in business — are more common in business; however, this is ignored in most neoliberal conceptions or deployment of contract and contract language Trakman, Importantly, when the market is conceived as one-time contractual relations, any extension of the market necessarily increases transaction costs — because it increases contracting — and thereby reduces the efficiency of the market.
Third, according to Paul Treanor In this sense, neoliberals conceptualize the market as a contractual structure, as opposed to property- or price-based one — both of which are naturalized as givens. Treanor goes on to argue that neoliberalism promotes an extension of market contracts to everything, an increase in the frequency of market contract negotiation, a decrease in their duration, and intensified forms of contractual audit; in this sense, neoliberalism is conceptually based on the number, frequency, duration and intensity of contractual transactions.
With neoliberalism, everything should be turned into a market contract, and these contracts should be re- negotiated constantly, reduced to the shortest possible timeframe to enable constant re- negotiation, and watched constantly — a starker utopia than the market-based order critical scholars generally present. This implies that as more activity — economic, social, political, etc. The increase in contracts or transaction costs would be phenomenal if everything was swept up into the market, and it would likely lead to the market grinding to a halt.
In fact, it would seem that the only way to resolve this dilemma is to standardize contractual arrangements; that is, to construct a range of standard form contracts to cover different social activities. Standard contracts, however, raise yet more contradictory issues for neoliberalism in concept and practice. Recently, Aksikas and Andrews Their point is that even though neoliberalism may be a contract-based order, this does not mean that it is based on free and voluntary contract.
More apt, perhaps, is the notion that neoliberalism is underpinned by standard contracts with all the inherent problems this entails. Standard form contracts and neoliberalism A standard contract — or boilerplate contract — is a contractual arrangement in which one party — usually buyer or consumer — has no input in determining the terms of the contractual agreement e.
An everyday example would be an end user license agreement EULA between software provider or similar and customer — this is a generic contract we enter into on an almost daily basis.
Standard contracts are, in this sense, no longer negotiated or even negotiable. It is hard, therefore, to consider them to be free and voluntary arrangements since one party has no power to enact their demands; yet, as Hayek claimed, they are necessary for modern capitalism since without them every transaction would need to be individually negotiated, monitored and enforced — an enormous cost for any society to bear.
They are everywhere, and they are not limited to individual consumers — business, the state and consumers use them on a daily basis. According to Zamir ibid. Standard contracts highlight at least three significant contradictions here with current analytical conceptions of neoliberalism: As standard contracts become increasingly complex and differentiated from one another it becomes almost impossible to compare suppliers and prices. Contract law is, in this sense, central to neoliberalism because it enables the extension of market-like relations — or, more accurately, contractual ones — to all areas of society; without standard contracts, transaction costs would militate against the extension of market-like arrangements.
This conflicts, however, with the idea that the market is the best or should be the central mechanism for coordinating either society or the firm. If the market was the best or only mechanism needed, then there would be no need for contract law. However, the latter is crucial for ensuring transactions can and do happen without too high a cost. More critically, the more that our social relations are converted into market-like interactions, the less efficient the market will be unless those interactions are reduced to standard and non-negotiable contracts; this is hardly the basis for liberty or choice.
This point goes back to the s when Slawson Primary care doctors thus become the bearers of the bad news, and are seen as closing gates to the patient's wishes and needs. When this happens, an immediate and enduring barrier to a trust-based patient-doctor relationship is created. The doctor—patient relationship is critical for vulnerable patients as they experience a heightened reliance on the physician's competence, skills, and good will.
The relationship need not involve a difference in power but usually does, 30 especially to the degree the patient is vulnerable or the physician is autocratic.
United States law considers the relationship fiduciary; i. Thus, providing health care, and being a doctor, is a moral enterprise. An incompetent doctor is judged not merely to be a poor businessperson, but also morally blameworthy, as having not lived up to the expectations of patients, and having violated the trust that is an essential and moral feature of the doctor—patient relationship.
Deception or other, even minor, betrayals are given weight disproportional to their occurrence, probably because of the vulnerability of the trusting party R.
Thus, a single organization may both provide and pay for care. Organizations as providers have duties such as competence, skill, and fidelity to sick members.
Organizations as payers have duties of stewardship and justice that can conflict with provider duties. Managed care organizations thus have conflicting roles and conflicting accountability.
An organization's accountability to its member population and to individual members has a series of inherent conflicts. Is the organization's primary accountability to its owners, to employer purchasers, to its population of members, or to individual, sick members?
If these constituents somehow share the accountability, how are conflicting interests resolved or balanced? For example, the use of the primary care clinician to coordinate or restrain access to other services involves the primary care clinician in accountability for resource use as well as for care of individual patients.
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Although unrestricted advocacy for all patients is never really achievable, the proper balance and the principles of balancing between accountability to individual patients, a population of patients, or an organization need to be made explicit and to be negotiated in new ways. All mechanisms for paying physicians, including fee-for-service reimbursement, create financial incentives to practice medicine in certain ways.
We still lack a calculus to minimize or even describe in fine detail how such conflicts affect our ability to justify trusting relationships.