Judging without criteria? Sickness certification in Dutch disability schemes: Sickness certification...

© 2007 The Authors. Journal compilation © 2007 Foundation for the Sociology of Health & Illness/Blackwell Publishing Ltd. Published by Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

Sociology of Health & Illness Vol. 29 No. 4 2007 ISSN 0141–9889, pp. 497–514

doi: 10.1111/j.1467-9566.2007.01009.x

Blackwell Publishing LtdOxford, UKSHILSociology of Health & Illness0141-9889© Blackwell Publishing Ltd/Editorial Board 2007294Original Article

Sickness certification in Dutch disability schemesAgnes Meershoek, Anja Krumeich and Rein Vos

Judging without criteria? Sickness certification in Dutch disability schemesAgnes Meershoek, Anja Krumeich and Rein Vos

Department of Health, Ethics and Philosophy, Maastricht University

Abstract

The gate-keeping function that physicians perform in determining clients’ physical and mental incapacities is widely assumed to be the main reason for the rising numbers of disabled people. The sharp rise in the number of disabled has led many to claim that the disability benefits schemes are untenable. In order to regain public control and to make disabled eligibility procedures more transparent guidelines have been introduced in which medical evaluations are conceptualised as formal rational decisions. It is, however, questionable whether such measures are helpful in achieving their stated aims. This paper is based on ethnographic research on the ways physicians evaluate the eligibility of clients for disability benefits. It argues that assessing incapacity involves much more than formal rational decision-making. Doctors’ reasoning is contextual and deliberative in character, and thus their assessment of a client’s incapacity is less a technical matter than a normative one. Instead of generating transparency, guidelines based on formal rationality make the complex deliberations on which such judgments are based invisible, because they deny the normative dimension of medical expert decision-making. Therefore, different measures have to be developed that allow this normative dimension to be articulated, since insight into this normative dimension is a necessary pre-condition to be able to criticise disability judgments at all.

Keywords:

ethnography, objectifying procedures, expert decision-making, sickness certification,accountability

Introduction

In industrial societies, disability schemes are the subject of major public and politicalconcern. In all Western countries the amount of time spent on sick leave and the numberof long-term claims for disability benefits have increased dramatically over the last decades(Einerhand

et al.

1995, Cuelenaere

et al.

1999). The main reason that the 20

th

century’ssickness and disability schemes are viewed as untenable has been the financial burden theyplace on employers, insurance companies and governments. But the urgency for change isalso motivated by non-financial reasons. In Western countries, having a paid job on thelabour market is seen as the main path towards social inclusion. Therefore, the hugenumber of recipients of disability benefits who are classified as incapable of employmentor as disabled is seen as a threat to the social cohesion of communities (Ford

et al.

2000).It is for both reasons that major reforms have been carried out in all Western countriesduring the last decade (Kalisch

et al.

1998).

498 Agnes Meershoek, Anja Krumeich and Rein Vos

© 2007 The Authors Journal compilation © 2007 Foundation for the Sociology of Health & Illness/Blackwell Publishing Ltd

The dramatic increase in the number of people entitled to sick leave arrangements ordisability benefits not only generates financial and social problems, but at the same timethis increase is seen as a signal that these regulations are out of public and political control.It is assumed that the system became accessible to people other than those who are ‘really’sick or disabled. Doctors, who function as gate keepers of the schemes, are accused offailing to uphold their function (Ford 1998, Berg

et al.

2000, Hussey

et al.

2004). They areassumed to be too liberal in sick listing and too often give patients the benefit of the doubt.In other words the trust in doctors’ judgments has come under attack.

In order to re-establish public and political control and to reduce the number of recipients,in all Western nations major reforms have been carried out during the last decade. Themost important parts of these reforms are proposals to limit sickness and disabilitybenefit expenditures by formalising and explicating the criteria of access (Kalisch

et al.

1998, Englund

et al.

2000). In the first place, this would be effected by emphasising thatlegitimate access should be restricted to cases in which incapacity judgments can begrounded on medical evidence and that economic, social or other considerations must bebanished from assessments of incapacity for work (Kalisch

et al.

1998, Englund

et al.

2000).In the second place, the proposals would point out that not sickness and disability

assuch

are sufficient to legitimate public assistance, but only their

consequences

for humanfunctioning (Kalisch

et al.

1998, Söderberg and Alexanderson 2003, Spicker 2003). Thismeans that doctors not only have to determine whether clients’ complaints are caused bya medical condition, but also whether the functional limitations that result are severeenough to render them incapable of working. Although individual variation in the limitingeffects of any given medical condition are not explicitly denied, it is assumed that medicalknowledge about a medical condition includes any functional limitations to the client thatmight result from it.

In short, these reforms focus on rendering doctors’ judgments more objective and uniformby banishing the subjective elements and emotional considerations of the clients. As inother medical domains, it is not medical knowledge as such, but the way doctors use it thatis considered to threaten the validity and reliability of expert medical judgments (Woolf

et al.

1999, Berg

et al.

2000). This conceptualisation of the problem accounts for the factthat, in the political arena as well as in professional debates, rationalising professional actionis seen as the solution to the problem (Porter 1995, Berg

et al.

2000, Birrell and Beach 2001,Verbeek

et al.

2002, Söderberg and Alexanderson 2003). It is assumed that defining moreexplicit criteria and formal procedures will help to keep doctors in line, improve the qualityof medical expert judgments and make these judgments more transparent.

The call for explication of criteria and procedures, however, is based on a specificconceptualisation of medical practice, in which medical evaluation is assumed to be basedon formal rules and medical knowledge, and decision-making is a wholly rational process.This model of rational decision-making assumes that practical action is a derivate offormal rules, which are enforced on practice from the outside. Or, in other words, thatpractical action will adjust to these formal rules. Furthermore, because it is assumed thatpractical action is determined by formal rules, professionals are also supposed to be ableto articulate their decisions in terms of the rules. These rules are therefore also seen asadequate instruments for accountability.

However, whether these kinds of proposals are helpful in achieving transparency, inincreasing public control and in generating a fairer system of benefit allocation is question-able. In social studies of science as well as in policy research, in both cases inspired byWittgenstein’s work on rule-following behaviour, this conceptualisation of the relationshipbetween rules and actual practical action is mainly considered as untenable (Van Gunsteren

Sickness certification in Dutch disability schemes 499

© 2007 The AuthorsJournal compilation © 2007 Foundation for the Sociology of Health & Illness/Blackwell Publishing Ltd

1976, Lipsky 1980, Collins 1985, Van der Veen 1990, Bloor 1992, Stone 1997). Formal rulesare necessarily based on abstractions and generalisations of the practical situations towhich they are intended to be applied (Collins 1985, Bal 1998, Meershoek

et al.

2001).Especially in complex situations, that will mean that a rule-applier has to interpret thesituation in order to apply the rule. Furthermore, he or she must decide whether thesituation is one to which the procedures are intended to apply, because the procedurescannot specify when to apply them or which professional action is warranted (Van Gunsteren1976, Lipsky 1980). In other words, in order to be able to apply rules to concrete situationsprofessionals cannot but rely on discretion. By using discretion, the meaning of the rulesis inevitably transformed. The outcome of rule application, therefore, will become deviatefrom the intentions of rule makers (Van der Veen 1990, Timmermans and Berg 1997,Bakker and Van Waarden 1999).

Besides the conceptualisation of rules, the rational decision-making model is alsocriticised for the conceptualisation of practical action. Practical action is not so muchdetermined by formal rules or formal rationality, as driven by a ‘practical rationality’(Widdershoven 1987, Lynch 1992, Meershoek 1999). In this conceptualisation of practice,the rationale of an action only can be explained and judged in relation to the specificcontext of that action. That does not mean that (professional) action in practice is arbitrary;but that the rationale is implicit and not fully explicable in formal rules or abstractregularities. It is a ‘knowing how to handle without being able to explain exactly why’. Inthis ‘practical rationality’ different types of guiding devices, as professional, informal codes,routines, administrative procedures and the like are tuned in a pragmatic way (Horstman

et al.

1997, Meershoek

et al.

2001). New rules introduced into practices in order to changethem must concur with the existing order (‘practical rationality’). In the process of obtaininga place, the existing order will change, but often not in the intended way, because the newrules will transform in the same process (Berg 1992, Dodier 1994, 1998, Timmermans

et al.

1998, Bal 1998). In order to understand this transformation process, insight into the practicalrationality is necessary.

Particularly in the medical domain, many studies have focused on the effects of protocolsand guidelines in actual practice and have shown how existing orders in practice on the onehand, and a new rule or instruction on the other, both change in this process in order toestablish a new balance (Horstman

et al.

1997, Dodier 1998, Timmermans

et al.

1998, Berg

et al.

2000). In this empirical research, however, not much attention is paid to the questionof what the consequences of these transformations of rules in practice are for public controland professional accountability. For accountability, it is necessary that professionals areable to articulate what is at stake in their decision-making process. Following the rationaldecision-making model, rules will be able to fulfil this function, because in this model it isassumed that practical action is determined by the formal rules. However, if we take thenotion of practical rationality seriously this assumption is untenable. Actual practicalaction then necessarily differs from the formal rules. We can therefore question whetherthese rules are helpful to articulate important aspects of the decision-making process. Inorder to be helpful, the discrepancy between formal rules and practical rationality shouldbe bridgeable (Porter 1995, Stone 1997, Bal 1998). If that is not possible, rules do notfunction as adequate accountability instruments, because they are not able to make thedecision-making process transparent for outsiders.

To answer the question whether the introduced formal and explicit criteria will contributeto a re-establishment of public control of disability schemes, and generate transparency, itis necessary to investigate whether professionals are able to articulate their decisions interms of these criteria. We therefore need to get insight into the practical rationality of



expert medical decision-making, insight into the way that doctors decide whether clientsare entitled to benefits or not. This is the aim of our research project.

Detailed observation of medical decision-making in diagnostic and therapeutic settingsis a major research theme.

1

For expert decision-making in which eligibility for socialarrangements is at stake, however, there is hardly any attention.

2

This study proposes to fillthis gap. It focuses on the way doctors judge the legitimacy of clients’ claims for sicknessand disability benefit in practice. How do they use their medical expertise? What otherresources do they use to determine whether clients are eligible? And how do they accountfor the judgments they make?

To answer these questions and discuss whether the new criteria for access would con-tribute to a re-establishment of public control of the disability schemes, this paper presentsthe results of ethnographic research of the expert medical decisions of doctors in DutchSickness and Disability schemes. After an explanation of the methodology, we present ananalysis of the practical rationality of expert medical decision-making in this domain. Wewill discuss the way doctors use medical knowledge, what kind of other resources they usein order to get a grip on the seriousness of a client’s disability and give insight into thestyles of reasoning they use in practice. In the conclusion, we will use these insights intothe practical rationality of illness certification to discuss ways of dealing with the tensionbetween the requirement to make decision-making processes more transparent and theneed to take into account the variation in clients’ circumstances in these judgments.

Methodology

This analysis is based on ethnographic studies of physicians who judge the legitimacy ofthe claims of people who are sick or people with disabilities that prevent them fromworking (Meershoek 1999, Meershoek

et al

. 2005). As in other countries, in sickness anddisability arrangements in the Netherlands two central questions are at stake. In the firstplace, a decision should be made whether a client with health complaints is able to do his/her

own

job. In most countries this decision is part of the short-term disability arrange-ments.

3

In the second place it should be judged whether a client is able to do work ingeneral or whether s/he is eligible for disability benefit. In most countries these kind ofjudgments are made in relation to long-term disability arrangements.

4

The physicians we followed are employed full time in sickness certification and do nothave curative or treating tasks. Normally, these doctors do not have information abouttheir clients before they visit. The judgments that are made, therefore, are based mainly oninformation they receive from the clients during the consultation. Sometimes they also havecontacts with the client’s employer, from which work-related information concerning theclient can be derived. Furthermore, they can ask the physicians or therapists responsible fortreating the employee for information, if the client gives his/her consent. In special casesthey can ask for an expert evaluation by hiring an independent physician with expertise inthe respective illness or disability.

In our fieldwork, we observed over five hundred consultations between clients and 20different doctors in different phases of the sick leave and reintegration trajectory, includingfinal judgments for long-term disability pension. We made field notes of the consultationsand of the physicians’ comments before and after them. We also interviewed the 20 physicianswe followed about the decision-making process. For our background understanding wealso followed the doctors in their contacts and meetings with other experts and employers.These meetings, however, are not systematically analysed.



Following ethnographic methodology (Hammersley and Atkinson 1995, Tedlock 2000),in the analysis we reconstructed the ‘practical rationality’ of sickness-certifying practices.First, we used inductive content analysis as in grounded theory (Strauss and Corbin 1994)to identify, code and categorise primary patterns in the ordering of the encounters. In thisstage, we identified which themes were discussed in the encounters and whether there wasa specific structure or order in the way they were dealt with. In the second stage we refinedthe patterns by focusing on the way doctors reacted to the answers of clients: whichanswers of clients were taken for granted and which were problematic; which responsesof clients were considered as satisfying and which were seen as insufficient; how did somereactions of clients become ‘self evident’ and others more ‘out of order’. In the third stagewe compared our findings with the comments of the doctors in order to try to confirm thepatterns as well as deepening our understanding of the practical rationality of certifyingpractices. We used these comments not so much as literal explanations, but as signals toread what doctors experienced as ‘normal’ procedures or cases and what they consideredto be exceptional. We therefore focused on the comments they made considering the clientsand the consultations, the kind of things they noticed as remarkable, the situations thatthey described as difficult, the cases they found exemplary, etc.

Judging incapacity and disability

In client consultations, the responsibility to initiate the discussion lies with the physicians.During the consultations, physicians gather information about a client’s situation. Theiraim is to assess whether the client’s complaints justify sick leave or disability benefits.In this section we will present our analysis of the way doctors conduct this assessment.Contrary to what one probably should expect, only a very small part of the encountersdeals with information concerning the medical condition of the client. The analysisshows that the focus in the inquiry is on the everyday experience of clients living with theircomplaints. In the interviews, doctors argue why they do not attach so much value tomedical information:

5

Well, in fact it is better to consider the relation between resources or capacities and demands then the diagnosis. People always have complaints, whether these complaints are covered by a diagnosis is in fact not that relevant for a social medical judgment. Sometimes it is, but usually it isn’t, the precise diagnosis. It is more important to become convinced that the complaints are plausible, very often you cannot prove them, that’s also useless to do, because then you start a process of medicalisation. But they must be plausible, and further you have to consider the functioning, what consequences have the complaints for functioning. It’s not possible to derive that directly from the complaints, but you also need a good social anamnesis, a good day-story, you have to have a good look at the way clients were functioning at their work, then you will get a more plausible picture than when you only consider the diagnosis. The diagnosis, for us, in fact is not that relevant.

Doctors argue that medical knowledge provides some information about problems causedby an illness, for example, which complaints are plausible and which are rare for any givenillness, but that conclusions about the seriousness and authenticity of a client’s problemsand limitations cannot be founded on them. Only in extreme cases, for instance whenpeople are in the intensive care unit, is the relationship between health complaints and



functional limitations rather obvious. These extreme cases, however, are rare in practice. Inmost cases doctors consider the relationship between health complaints and functionallimitations as complicated and unclear.

In this section we will first present the way doctors investigate the experiences andcircumstances of clients during their encounters. How do clients suffer and when, whichnormal activities do they still perform and which not, what initiatives do they undertaketo improve their situation, and their social and work circumstances. Secondly we willdiscuss the way doctors use this information in order to come to an evaluation.

Everyday experiences

After a short introduction, doctors begin a consultation by asking questions about the client’scomplaints. The way doctors formulate these questions shows that they are interested inthe functional limitations and hindrances clients experience in their everyday life: ‘How doyou recognise that your condition or disability is getting worse?’; ‘What is it exactly thathinders you in performing your job?’; ‘What happens if you try to do . . . (examples ofwork tasks)?’; ‘What goes wrong when you try to perform . . . (examples of work tasks)?’.As illustrated in the next fragment, doctors stimulate clients to answer these questions inordinary language:

Phys: So you suffer from stress? Tell me, what are the problems?Client: Well, actually, since the holiday last year it hasn’t gone well, I came up against

things, and started making mistakes. Well, it isn’t going that well.Phys: Making mistakes? Can you give me an example?Client: Well, sometimes I have forgotten an appointment.Phys: You made an appointment with someone and didn’t show up?Client: Yes, it was on my calendar, but, well, I forgot about it. Or I promised to do

something and didn’t do it. I didn’t remember to do it. And typing mistakes in letters. I noticed them only after the letter has already been sent – very bad.

Phys: And do you get irritated?Client: No.

6

This client’s complaints are about having too much stress, and the doctor asks her toexplain what she means: What exactly is going on? What kinds of mistakes were youmaking? Are you too emotional? These questions make the client describe her experiencesin terms of concrete experiences.

Besides focusing on concrete experiences of pain and physical hindrances, doctors try toget insight in the clients’ complaints by asking questions about their everyday activities:

Phys: Do you go shopping?Client: Yes, sometimes, with assistance from friendsPhys: and cooking?Client: well, bad, not as I used to doPhys: But you still do the cooking?Client: Yes, and my friends help mePhys: how often?Client: I do it once a week

Quite often doctors use a so-called ‘day-story’, which helps them to discuss clients’ dailypractices in a structured way:



Phys: Your days, how do they usually go? Last Friday for instance?Client: I get up at 8 o’clock, take a shower and then eat breakfast.Phys: A half hour passes and then what?Client: Well, breakfast is 15 minutes, then I see how I feel.Phys: And how did you feel?Client: I was tired. I had gone through a lot of things at work as I told you. So

I worked a little on the computer, walked for an hour, did the shopping, did the dishes.

Phys: Did you have lunch?Client: Yes, from 11.45 till 12.Phys: What was it?Client: A sandwich.Phys: Ok, two slices of bread with cheese and then?Client: Well, I took three pieces of bread with aniseed comfit or jam, or something like

that. Afterwards I always take a rest. One hour, just lying on the bed, eyes closed, from 13.30 till 14.30. I’m tired now [it is two o’clock].

Phys: It’s your time for a rest. Well, you’re doing well.Client: For the rest, I watched some television.Phys: Did you do the cooking?Client: I always do.Phys: What [did you cook]?Client: To be honest, soup, from a tin, [laughter]. But that’s not what I usually do.

I also cook.Phys: You don’t have to apologise. What did you do in the evening?Client: Watched television and called my sister, father and one of my friends.Phys: What time did you go to bed?Client: At 21.30 or 10 o’clock. I read for a half hour.

In asking the client to tell him or her a ‘day-story’, the doctor is getting the client to describehow she or he is dealing with everyday activities, such as doing the shopping, the cooking,making meals, taking a rest, doing one’s hobbies, or visiting people. These descriptionsmake clear what clients are still able to do and what they cannot do as a result of theirillness or disability. A ‘day-story’ thus provides clues as to what tasks the client may be ableto perform at work.

That doctors are interested in daily experiences becomes even clearer in cases whereclients do not adequately answer the questions. Some clients, for instance, start to tell aboutthe history of their complaints:

Phys: Could you start your work again at this moment?Client: Well, I’ve had a fever.Phys: I just want to discuss the current situation first, then we will come back to the

history.Client: I have a pressing sensation on the chest, because I’ve had a fever. I was denying

it for too long, I had a real heavy sensation, phlegm while coughing, a sore throat and a severe cold.

Phys: But what is the disability at this moment?

Or they give the opinion of their general practitioner or specialist or start to tell about themedical treatment:



Phys: what do you suffer from?Client: well, I’ve medicines now.Phys: but what do you suffer from? Insomnia/sleepnessless?Client: Insomnia, attacks of anxietyPhys: What is that?Client: well that I’m not able to see a way out of it, then I go to the clinicPhys: What is it that makes you notice you cannot do your work anymore?Client: I’ve too much pain. I visit the neurologist, he also saw there is something

wrong. Now I have to go to an academic hospital.Phys: But what exactly are your complaints, what causes things to be going badly for

you?

These clients do not answer the doctors’ questions in the expected fashion. As we see inthe fragments the doctors interrupt these clients and try to incite them to tell aboutexperiences by repeating the question with more emphasis on these aspects.

Taking the initiative

A second major theme in the conversations is focused on the way clients deal with theirhealth complaints. Therefore doctors ask them what they do to solve or improve theirmedical problems. ‘What do you do about your situation?’ ‘What are you doing to getbetter?’ ‘What actions are you taking to solve your problems?’ ‘How do you deal with theseproblems?’

Phys: How are you dealing with it? What are you doing to recover?Client: At first nothing. At that time I was only sleeping. Now I’m trying to make a

plan and trying to do something. It needs time. Eventually I had a relapse, the stress has to come out.

Phys: How do you try to do something about it?Client: I try to lead a regular life by getting up on time, continuing to do something,

and doing a lot of cycling

This client tells the doctor that after a period of ‘doing nothing’ and letting thingshappen, she is now trying to get control over her life again by making plans and motivatingherself. The material shows that seeking medical help, regulating everyday activitiesand changing bad life styles are considered as adequate efforts to better their situation. Ifclients do not show initiative by themselves, doctors often give clients concrete advice howto take initiative.

A client’s efforts to return to work are another important subject of conversation. Physiciansask clients whether they have had contact with their employer’s personnel managers duringtheir sick leave, how they are thinking about their work in the future, and how they areorganising their return to it:

Phys: How are you doing at the moment?Client: Not so well. I’ve been to my office and would like to resume therapeutic work.

The psychologist told me to be careful. I will make a plan with my boss, so I can return gradually. I didn’t make the plan yet because I’m still having problems with my stomach.

Phys: It’s OK. Arrange it yourself. Come back in five weeks and you can tell me how you’re doing.



This client suffers from psychological as well as stomach problems. She has a clear ideaabout how to return to work, and she will make a schedule to expand her activities grad-ually. Although she has not yet begun to make it, the doctor expresses his confidence inher plan by telling her ‘it is OK; arrange it yourself ’.

These initiatives and plans or the doctors’ advice to take initiative are important for therecovery process and the trajectory of work reintegration. However, doctors use the wayclients respond to their questions in the meantime as a means of assessing the authenticityof their complaints:

After a consultation:This is unclear, but she is really working on it, takes initiative in treatment, goes to the RIAGG (ambulant psychiatric service), group therapy, that helps, but that’s not the real cause, she continues it, it is clear she is working hard on her recovery.

Clients’ efforts to recover and to return to work imply that they do not want to takeadvantage of the benefits system and generate the physicians’ trust that what they aresaying about their problems is true.

Social circumstances

As we showed above, doctors use the way clients deal with their complaints to judge theirtrustworthiness. Responsible behaviour gives them reason to believe the complaints areauthentic. Irresponsible behaviour, however, does not necessarily indicate that thecomplaints are false or feigned, for not all clients are able to take the necessary stepsor have the skills to think about their situation analytically.

7

Furthermore, socialcircumstances influence the way they deal with their complaints and, especially in the caseof (socio-) psychological complaints, the extent to which they suffer from their complaints.For many clients it is reasonable or understandable that they do not take the initiativeor have an inadequate coping strategy, and cannot be blamed for it or accused of beingdishonest. For this reason, doctors also try to assess what level of initiative can reasonablybe expected from a particular client.

Physicians therefore often ask questions about the personal history or early youth:

Client: . . . My parents are divorced.Phys: and you and your stepfather couldn’t get on together?Client: no, absolutely not, that was the cause, I was the cause of their quarrels; and

I had also difficulties with my own father.Phys: your youth was difficult?Client: yes, and my mother, now she chooses my side, she knows what has happenedPhys: do you have brothers and sisters?Client: a brother.Phys: how is he doing?Client: bad, he takes sides with my stepfather, as always, but he didn’t live with us, so

he doesn’t know what happened then, the things my stepfather did.Phys: . . . some things in your character, because of your youth, can give limitations;

it’s not really serious, mentally, but the problems of your youth can give limitations.

Client: well, I was treated very strictly, they didn’t allow me to go out dancing.Phys: and that was weighing on you? You experienced that as oppressing?Client: yes, very much.



This client had a difficult youth because of the divorce of her parents and the bad relation-ship with her stepfather. The doctor considers this information as relevant, because, as hesays, these developments in her youth have consequences for the way she deals with hercomplaints at this moment.

In addition to the personal history, the client’s family situation is also taken into consid-eration in order to assess the seriousness of the health complaints of a client:

Afterwards:Phys: well, the knees. It’s a difficult case. She is sitting here during the whole consultation,

so it doesn’t fit, she says she is not able to sit for more than five minutes. The knees, however, are stiff. And the back . . . also limited. The tailbone also. She isn’t aware she was sitting here for over 45 minutes. Problems with stooping, well I can imagine (the client is very heavy). But she has serious problems at home. Her man was fired, he did something, that wasn’t allowed, something, well, criminal. And here, she is laughing all the time, but she has serious problems. Physically it is quite clear, but . . . The difficulty is . . . Well she has psychological problems. Physically she can do at least something, but will she do something with that . . .

Physicians use the information of the personal history and social circumstances to assess theplausibility of the claims of the client. They combine this information with the impressionsthey get from the clients during their consultations and with bits and pieces of informationabout their occupations, their initiatives, the interest and hobbies and so on, that theygather in the consultations, and try to classify the client and his or her situation, to makean overall picture of them. This overall picture helps them to assess what level of initiativereasonably can expected from a particular client, whether their (inadequate) coping strategycan be explained by the situation and competences and whether the experiences make sense,given their personality and circumstances:

After a consultation:Researcher: It seems clear to you. The complaints are plausible. How do you know?

What are your reasons?Phys: Well, you see [reading from the client’s form aloud] he worked as a

gardener, then with a cleaning service, once again with cleaning services and again; he is not that intelligent so to say. Did LLE [lower level education] but in the column ‘diploma’: none. So he hasn’t finished anything. Little money, little prestige, so nothing to lean on, no diploma which gives confidence; little . . . Well you could say ‘the divorce of his parents and his house has been broken into’: is that really that bad? But a person like him doesn’t have a sound social basis to lean on, and the girl friend a depressive, they reinforce each other. But he is well on his way back to work, I’m not enthusiastic about the coaching, but . . . They reinforce each other. This partner will not say, let’s go for a little walk, just to try and then next week, shall we do it again. Last week it was OK after all. Well formally we are not allowed to take these private circumstances into consideration, but if you push such a client too much, he will. . . . , it will become worse then, so I just do it.

This client was reported ill one year ago with complaints about stress. The client tells thedoctor that he thought his parents’ divorce was the reason for his problems, which got



worse because of the burglary of his house. At first glance it seems implausible that adivorce and a burglary would cause a person to become so upset. The personal circum-stances of this client, however, make his inability to cope with these events more compre-hensible. The doctor believes this is what is going on in this case because this client doesnot have a sound social basis on which to rely: little self-esteem because of all the unfin-ished degrees and his girlfriend is even more vulnerable than he is. Given this situation, thedoctor is convinced that the client really does suffer from the complaints he says he does.

So to judge whether the way clients deal with their complaints corresponds to theirpersonal situation, doctors make detailed pictures of the competences and the social cir-cumstances of their clients. They use this information to determine whether clients aredoing everything within their power to improve their situation. If they think that is thecase, they assume it to be likely that clients actually experience the complaints as they saythey do, even if initially the complaints and limitations seem exaggerated. Instead of anidentifiable pathology, the way clients deal with their complaints and the question ofwhether their behaviour is adequate, given their competences and circumstances, becomesimportant in assessing whether clients experience the complaints as they claim they do.

Judging work incapacity: weighing limitations, competences and consequences

The certification process ends with the physician filling out a form that indicates whethera client is capable of executing specific functions, possesses certain limitations or is notcapable of doing work at all. Formally, they must deduce a client’s incapacity ‘objectively’from knowledge about their medical problem. As we explained before, doctors considerthis as possible only in extreme situations, which are rare in their practice. Therefore,physicians rely on other instruments to access a client’s condition. For this reason physi-cians are confronted with a dilemma. On the one hand, the information they obtainedduring the consultation indicates that clients are ‘really’ suffering from an illness, whichhinders their ability to carry out the responsibilities of their job. On the other, they oftencannot identify a pathology that could explain the loss of certain functions. The questionis whether they are allowed to include the loss of these functions in their disability assess-ment form, while there is no hard evidence to underpin them.

To cope with this dilemma, a person’s functional capability is determined by a processin which medical evidence, the personality and circumstances of the client and the assumedconsequences of a decision are cautiously weighed:

Before the consultation:Phys: In May she said: Always pain. She can’t walk for long. I did a physical

examination. The back was a little tense, clearly showing physical signs of pain-avoidance. The husband does most of the housekeeping, is working, good job, children, seven and nine. I asked for information from the hospital. No operation is needed, light wear and tear on the discs and a lot of pain.Well you see, that’s an obvious sign of someone in pain. I concluded that too from the physical examination. Then you can do two things. One: nothing can be proven, so you can go to work normally. Two: allow some work limitations because there is pain. You can see in her behaviour that there is pain. Both happen, you have both types of physicians.

After the consultation:Phys: Some physicians say there is no disorder here, so you cannot determine

limitations objectively. So the client is able to function normally. If we assess her



this way, she is capable of doing her own job. She will not agree, and will appeal the decision and cling to her complaints. Her problem will go from bad to worse. I authorised work limitations, so she will not have to do tasks that will be hard on her back. In the physical examination I observed physical signs of pain avoidance. Further it is obvious that the pain is hindering her. That’s why she has been reported ill. This client is still motivated to do something, and after some retraining, she will rejoin the workforce, with a bit of luck, until she retires. The social circumstances are good. Her husband has a good job, so it will work. I think that’s the spirit of the law, to return people to the labour market permanently.

This woman suffers from unaccountable back pain. No pathology can be identified toexplain her complaints. At the same time the doctor is convinced she does experience pain.The fact that he can identify physical signs of pain-avoidance in her movements confirmsthe client’s story. But is this enough evidence to decide that she is limited in what kinds ofwork she can do? The doctor makes a decision by considering several aspects of theproblem. On the one hand, if he does not authorise work limitations for this woman, shewill remain officially capable of doing her normal job. Since the doctor thinks that theclient really does experience the limitations she reported, it is most likely she would appealthat decision. Guided by his experience the doctor assumes that clients who appeal adecision have a high risk of permanent disability. On the other hand, if he authorises somework limitations, which he can justify with the physical signs of pain-avoidance, she wouldinterpret this as recognition of her problem and agree with the physician’s assessment.Moreover, the doctor assumes she is motivated to do other work, and her social circumstancessuggest that she will succeed in this respect. After a short period of partial incapacity,so the doctor reasons, the outcome will be a long-term return to the labour market. Thisoutcome, in combination with the physical signs of pain-avoidance, leads the physician toconclude that both the client and society are better off by authorising her as ‘partly disabled’.

Doctors use these kinds of contextual lines of reasoning very often. Only in exceptionalcases, as for instance a neck hernia, medical information is sufficient by which to assessfunctional limitation. In other cases doctors do not have an unambiguous criterion forassessment. They try, therefore, to weight bits and pieces of different types of informationin order to assess whether the clients actually suffer from their health problems as theyclaim they do. Thus, the assessment process is not so much a measurement as an argumen-tation in which many aspects are weighed against each other.

Practical rationality and sickness certification

In this analysis, we have tried to describe the practical rationality of physicians’ practicesin assessing disability claims. We showed that doctors consider a medical diagnosis asinsufficient for determining whether clients are capable of working or not, because pathol-ogies have different consequences for individuals in terms of presence and seriousness ofspecific symptoms or hindrances. Doctors therefore use other information in order toassess a client’s limitations for work. In the first place the interrogation focuses on clients’everyday experiences of living with their complaints to get an idea what a client exactlydoes, and what he doesn’t do any more because of the limitations s/he experiences. In thesecond place, they judge whether clients take the initiative in order to improve their situa-tion concerning their health complaints, as well as concerning their work situation. Clientswho demonstrate initiative, generate the doctors’ trust that what they are saying about theircomplaints is true, and this implies that they do not want to take advantage of the benefit



system. In cases where the client does not demonstrate initiative, however, the assessmentbecomes more complicated. Taking the initiative, so the doctors assume, supposes thatclients are able to think about themselves analytically. Not all clients, however, have thecompetences to do so. In the third place, doctors therefore gather information concerningthe client’s ‘personality’ and social circumstances. They consider this informationrelevant for reconstructing an overall picture of the client, which they use to assess whatcan reasonably be expected from a client. They assume that assessment important forjudging whether clients can be blamed for the lack of initiative because this lack is causedby trying to take advantage of the system. Finally, the physicians make an assessment ofthe possible consequences of their decision for the client’s long-term possibilities in thelabour market.

Incapacity thus turns out to be a result of a complex assessment process in which doctorstake different types of information into consideration and try to cautiously weigh thedifferent aspects. Medical knowledge is incorporated into the process of evaluation, not asa decisive factor, but to help determine whether a client is exaggerating his or her com-plaints. It serves as a point of reference in an evaluation. But it cannot account fully fordoctors’ evaluation of clients’ capacities to work, and does not even serve as the basis oftheir decision in any substantive sense. Clients’ experiences, their competences and socialcircumstances are assumed to be necessary information in order to assess the limitationsclients have and therefore to judge their claims for sick leave or disability benefit. In thisevaluation process, doctors not only assess the authenticity of the complaints, but they alsoconsider the consequences of their evaluations for the clients’ participation in the labourmarket in the long run. These considerations, however, remain invisible for those outsidethe consultation room, because only the outcome of the evaluation process is made publicand not the deliberations underlying it. In other words, medical and (socio) normativeaspects are both incorporated in disability judgments, not as independent factors, but asmutually dependent phenomena that define each other.

Practical rationality, steering and accountability

In Western countries, the dramatic increase of temporary and permanent disability duringthe last decades of the 20

th

century is considered to be a signal that sickness and disabilityarrangements are out of public and political control. In order to re-establish politicalcontrol, criteria of access are tightened and more explicitly defined. Legitimate accessshould be restricted to medically proven cases of disability and guidelines have to be devel-oped to keep doctors in line. These reforms assume that practical action is determined byformal rules. Following theories of rule-following behaviour inspired by Wittgenstein, wecan however question whether these instruments will achieve the aim of public and politicalcontrol of the arrangement. Therefore the gap between the practical rationality of dailypractice and formal rules should be bridgeable.

The analysis of the practical rationality of sickness certification shows that assessingclients is not so much the technical matter that is assumed in policy proposals. The judg-ments are highly contextual and normative in character. Normative, not only in the sensethat entitlement to benefit is judged, but also in the sense that in daily practice all kinds ofother norms are incorporated. As we have seen, doctors weigh the ability of clients to copewith their problems, the way they express themselves, the actions they take to improve theirsituation, the social circumstances and assumed consequences for labour participation inthe future in their assessments of incapacity. In other words, they use implicit norms about



what can be expected from employees and what cannot; what is and what is not an appro-priate justification and what kind of assistance is proper in any given situation.

Without saying that the implicit norms doctors use in practice are always right or just,the conclusion that disability judgments are necessarily normative in character seemsreasonable. Also in disability studies (Oliver 1990, Spicker 2003, Imrie 2004), it is arguedthat the categories of sickness, disability, and incapacity are unclear. The ambiguity is notdue to undeveloped definitions and criteria as such, but is a consequence of the undefinedand complex phenomena they are dealing with. Sickness, disability and incapacity constitutevarious human experiences, rather than well-defined clinical conditions. The social, physicaland psychological dimensions are intertwined and influence each other. These ideasconcerning disability and incapacity are reflected in the recent revision of InternationalClassification of Functioning, Disability and Health in which incapacity is not defined asa medical phenomenon, but conceptualised as a consequence of the complex interactionsbetween the individual and the organisation of society (WHO 2001).

Given this complex and contextual nature of the phenomenon of disability, categorisingpeople is not so much a technical matter as a normative one. However, this normativedimension is not unique for the sickness-certifying practices, but has been noted as a generalcharacteristic of professional work. Especially in what is called ‘street-level-bureaucratwork’, it is being argued that, in order to gain public control over professional practices,this normative dimension has to be taken seriously (Lipsky 1980, Van der Veen 1990, Porter1995, Horstman 2004). These studies also claim that

overlooking

this normative dimensionis precisely the problem with the objectifying procedures that have been so popular inpolitics and in the medical profession.

To re-establish control over the disability arrangements, and to judge or criticise thefairness of doctors’ decisions, insight into their considerations and the weighing process arecrucial. As we have shown, the introduction of clinical criteria and efforts to standardisesickness-certifying practices disregards current methods that physicians have devised fordealing with judging clients’ capacities. It also denies the inherent normative character ofthe evaluation process. Such procedures, therefore, will lead neither to uniformity nortransparency in the assessment of disability. Instead, they will make the assessment processeven more arbitrary because objectifying procedures covers up the contextual reasoningand normative dimension of the evaluations.

Therefore, to re-establish public control over medical evaluation of disability and togenerate transparency in physicians’ judgments, other strategies are necessary. For these,we can draw from a number of more general policy studies that also argue that the steeringprinciples of the ‘rational-central-rule approach’,

8

of which the objectifying procedures arean example, are considered to be outdated (Van Gunsteren 1998, Van Twist 1999). Theyclaim that contemporary society is too complex to control by defining a priori rules andprocedures, that procedures based on mechanical objectivity are inadequate instrumentsfor generating trust through transparency, and that they have to be replaced by proceduresthat make physicians accountable. Instead of defining criteria, which will inevitably bereductionist in character, accountability procedures must involve the qualitative dimensionsof the decision-making process (Van Gunsteren 1998). These procedures must allowprofessionals to tell stories about their everyday experiences by comparing notes anddescribing the dilemmas they face, among each other as well as with other stakeholders.Policy instruments in which the complexity of decision-making processes is expressedinclude peer review, intra-professional audits and stakeholder panels.

In the case of sickness-certifying practices, the daily struggle of doctors to find a balancebetween evaluating clients’ claims and finding ways of keeping them in the labour pool



should be the starting point. Without claiming that they always make the right decisions,it is important to take their struggle seriously and to invite doctors to articulate theirarguments and considerations. In more open procedures of accountability, the complexityof reasoning can be ‘opened up’ instead of closed off from view, as happens in settingformal objectifying procedures. By opening it up, the implicit normative aspects of theevaluation process can be revealed and discussed. Hence, policy makers, professionalsand other stakeholders can learn from experience by evaluating them with regard to theconsequences they have for individual clients as well as for society.

It is therefore also important to discuss the considerations of doctors in light of thewhole scope of the social problem that is being dealt with. If improving social participationin the work force is a serious intention of social security reforms, the tension between theevaluation process for receiving disability benefits and reintegration must be discussed. Itis too easy to condemn the way doctors weigh the impact of their judgments of clients’capacities on clients’ lives as transgressing the rules. This does not mean that clients’ claimsmust always be accepted, but that a balance must be found. The current practices ofassessing the best solution for clients as well as for society can be helpful in this search,even if some individual cases are considered untenable.

Address for correspondence: Agnes Meershoek, Department of Health Ethics and Philosophy,Maastricht University, The Netherlands, PO Box 616, 6200 MD Maastricht, The Netherlandse-mail: [email protected]

Acknowledgements

We want to thank Rob Houtepen for helpful comments and discussion and Margaret Meredith andCatherine Naughton for editing the English. We are also grateful to the physicians who participatedin the research.

Notes

1 See for instance Strong 1979, Atkinson and Heath 1981, Strauss

et al.

1985, Silverman 1987, Berg1992, Mol 2002.

2 There are some studies. See for instance Stone (1984) and Dodier (1994, 1998).3 In the Netherlands the short-term sick leave is covered by compulsory wage payment during

the first year of sick leave (recently this period has extended to two years). Employers arealso responsible for the socio-medical coaching of employees as well as for facilitating theirreintegration, for which they are obliged by law to hire an expert company, the so called‘Arbodienst’. Doctors who evaluate the claims of employees work for these Arbodiensten.Depending on the agreement between the Arbodienst and the employer, the doctor sees anemployee between one day and four weeks after being reported ill. Subsequent visits to the doctordepend upon the specific nature of the complaints of the client and the agreement between theArbodienst and employer. The ‘Arbo’ physicians’ task is to advise employers on the employee’sdegree of incapacity.

4 In the Netherlands the Disabled Insurance Act covers long-term disability. The waiting period isextended to two years; during the observations it was one year. Insurance physicians who evaluateclaims for permanent disability benefit are working for the public administrative body that carriesout the allocation of permanent disability benefit.

In the Netherlands, ‘Arbo’ physicians as well as insurance physicians evaluate the consequencesof illness and disability for functioning of people in work. Because the research question concerns



the way doctors make these kinds of judgments, both types of doctors are included in the researchproject.

5 The argument that medical information is not sufficient or adequate to assess incapacity is alsodiscussed in sickness-certifying literature. See for instance Tellnes 1989, De Boer 1992, Reiso

et al.

2000, Dünner

et al.

2001, Söderberg and Alexanderson 2003.6 The conversations are reconstructed on the basis of the field notes.7 Mudde (1995) has found this phenomenon in his study of ‘Arbo’ doctors and called it ‘appropriate

self-presentation’. See also De Swaan’s (1990) sociological analysis of the therapeutic practices, inwhich he concludes that clients are more likely to be selected for psychotherapy if they are ableto find the right balance between distance and involvement.

8 See Van Gunsteren 1976.

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