Medical Ethics Smack Down 2: Medical Ethics the Right Way

DrRich | January 22nd, 2010 - 11:02 am

In his last post, and not without some little trepidation over the propriety of doing so, DrRich offered to enter into a “constructive dialogue” with Bob Doherty of the ACP Advocate Blog, regarding the important topic of medical ethics. What occasioned this offer was the fortuitous selection of each of us as finalists in the 2009 Medical Weblog Award Competition, in the category of Best Health Policy/Ethics Blog.

Ever since the inception of the Covert Rationing Blog (and even before that, in his book) DrRich has taken strong exception to the new code of “medical ethics for a new millennium,” formally promulgated in 2002 by the American College of Physicians and several of its equally respected sister organizations (a grouping DrRich has termed the Millennialists). And when he saw that the ACP Advocate Blog (an official publication of a principle component of the Millennialists) had become a co-finalist for a Weblog Award in the category of medical ethics, DrRich could not resist offering to engage in a discussion over same.

DrRich is delighted to report that Bob Doherty, who, in addition of being the author of the ACP Advocate Blog, is also the ACP’s Senior Vice President of Governmental Affairs and Public Policy, has graciously agreed to the suggested exchange of ideas. Mr. Doherty reports that he will be posting a reply to DrRich’s “challenge,” once he finishes consulting with the ACP’s Center for Ethics, Professionalism and Human Rights. And so, dear readers, it appears that DrRich (your humble correspondent) has gotten himself into a situation. It appears he will be engaging – at his own instigation, no less – with actual, certified experts on medical ethics, regarding the topic: medical ethics.

DrRich can almost hear some of his loyal readers gasping: “Why, he’ll be skinned alive!”

But fear not. DrRich will not hurt him. DrRich does not flay anybody, and promises to remain entirely civil and friendly in this exchange. DrRich, upon his honor, will see to it that Mr. Doherty (and whatever friends he may enlist in the cause) will emerge from this encounter entirely intact, integumentarily speaking.

In fact, to show his great good faith (and to level the playing field), DrRich will now break with all the conventions of debate, and before Mr. Doherty posts his reply, will lay the rest of his cards upon the table, so that the opposition will have the advantage of knowing ALL of DrRich’s arguments before they commit themselves to an answer. That is how dedicated DrRich is to keeping this competition friendly and respectful and fair.

DrRich’s Argument So Far

In his previous, challenge-issuing post, DrRich described how the “New Ethics” advanced by the Millennialists obligates the physician to strive for the ethical precept of Social Justice, which is to say, for “the fair distribution of healthcare resources.” So the doctor is now charged with deciding which patients may receive, and which may not receive, certain healthcare resources. To say it another way, under this new conception of medical ethics the doctor is assigned the duty to ration healthcare, covertly, at the bedside.

DrRich further described how this New Ethics fundamentally wrecks the doctor-patient relationship, and thus leaves patients to their own devices within a hostile healthcare system. In addition DrRich asserted that, once they adopted this New Ethics, physicians surrendered their claim to the title “professional,” and accordingly, made themselves fair game to whatever treatment, tactic, or travesty that any more powerful interest group (such as trial lawyers or Congress or regulators or insurers) may choose to foist upon them. Physicians no longer have any ethical standing for turning such attacks aside. Rather, as non-professionals, their ability to withstand attacks can only be proportionate to whatever socioeconomic or political pressure they can muster. So, as DrRich sees it, the New Ethics promulgated by the Millennialists is pretty much a disaster for both doctors and patients.

This is the extent of the argument DrRich has advanced so far.

Here Are The Rest Of DrRich’s Cards

The Millennialists did get one thing right in this effort. They correctly diagnosed the fact that old-fashioned, “classic” medical ethics, as advantageous as it may have been to both patients and doctors, is no longer consistent with reality.

Under classical medical ethics, the doctor’s one and only ethical obligation was to the individual patient. And so, classic ethics did not allow for any limits whatsoever on the medical services a patient may receive. If some bit of available medical care might offer even a small nugget of hope, doctors were obligated to provide it, no matter how expensive it might be to do so.

It is important to recognize that classic medical ethics evolved during a time when medical technology was relatively primitive, limited, and cheap, and more importantly, at a time when patients paid for their own healthcare. So when classic medical ethics was formulated, “healthcare spending limits” (though nobody talked in such terms back then), were self-imposed, by the patient.

But over the past 60 years medical technology has become very advanced and very expensive. And even more to the point, we have evolved a payment system in which people who receive healthcare are spending not their own funds, but rather, are spending publicly-funded, pooled resources. (Those pooled resources are either funded directly through the government, or are subsidized by the public indirectly, through tax-deductable insurance premiums).

It is this collective funding arrangement that has made classic medical ethics obsolete. It is neither feasible nor ethical to leave all decisions on how to spend society’s pooled healthcare dollars to individual doctors and individual patients, who can “take” as much of this pooled resource as they think they’d like to have, with absolutely no constraints. Such an arrangement eventually and inevitably leads to fiscal ruin.

By the 1990s, because spending limits were absolutely necessary, but at the same time classic medical ethics precluded setting such limits, doctors were being coerced by the private insurers and government payers to establish those limits covertly, through bedside rationing. This was the problem faced by the Millennialists when they set out to reformulate medical ethics, and they were right to make the attempt.

But unfortunately, this is where the Millennialists dropped the ball and, as DrRich has shown, settled upon an answer that just made things worse.

The Right Medical Ethics

Medical ethics would be “right” if it could be made to comport with the classic notion that the doctor’s primary obligation is to his/her individual patients (thus preserving the classic doctor-patient relationship), and yet still respected society’s need to control the spending of its pooled resources. That is, the “right” ethics will recognize both society’s needs and the needs of individual patients, will recognize that those two sets of legitimate needs are often in conflict, and will provide an ethical framework for resolving these conflicts.

That ethical framework, DrRich is pleased to announce, is not that hard to conceptualize.

We can solve this problem if we think of the ethics of healthcare as being organized into two concentric spheres. The outer sphere holds the ethical precepts adopted by society to guide the behavior of the healthcare system for the benefit of the entire population; for example, to set overall limits on spending. These outer-sphere precepts help to ensure that the needs of society as a whole are served in an ethical manner by the healthcare system.

Contained within (and therefore subject to) that outer sphere of societal precepts is an inner sphere, which holds the ethical precepts that govern the behavior of individual doctors and patients within the healthcare system. Inner-sphere precepts help to ensure that the rights and needs of individual patients are addressed in an ethical manner.

So, while the physician’s primary ethical obligation must always be for the benefit of the individual patient, and therefore the physician must operate according to ethical precepts that honor this duty to individual patients (the inner-sphere precepts), their behavior must also conform with the ethical constraints imposed by society on the entire population (the outer-sphere precepts).

We can think of the inner-sphere precepts as an immutable core of ethical beliefs that serve the fundamental American commitment to the autonomy of the individual, and of the outer sphere as a coating, fashioned by society and therefore changeable, that places an adjustable (and ethically derived) limit on the individual’s ability to consume pooled resources.

The Inner Sphere – Ethical Precepts For Individuals

The inner sphere of ethical precepts – the core – fully preserves the two precepts of classic medical ethics: the precept of Patient Welfare, which requires the doctor to always act to the benefit of his/her individual patient; and the precept of Patient Autonomy, which requires the doctor to respect the individual patient’s right to medical self-determination. So the inner sphere precepts completely restore the physician’s sacred obligation to the interests of their individual patients. And thus, also restored are both the classic doctor-patient relationship, and medical professionalism.

But while individual welfare and individual autonomy are critical (and comprise the chief ethical obligations of the physician), there are still legitimate limits to what the patient (and doctor) can reasonably expect to receive from pooled resources. When a patient demands that everything possible be done for them, they are exceeding the bounds of autonomy if doing “everything” means that other individuals would thereby be deprived of what otherwise would be rightfully their fair share of those pooled resources. These necessary bounds on individual autonomy are defined by the outer sphere.

The Outer Sphere – Ethical Precepts For Society.

Under any equitable healthcare system we are going to have to carefully define our outer sphere ethical norms, because those are the standards that bound and govern the inner-sphere behaviors of individual doctors and patients. This “outer sphere ethics” is also comprised of two ethical precepts, Societal Beneficence and Distributive Justice.

Societal Beneficence (or social welfare) requires the healthcare system to attempt to maximize the overall public good realized from whatever pooled resources society expends on healthcare. Social welfare is not the same as patient welfare, because what is optimal for an individual patient may often reduce the overall benefit to society, and vice versa.

Distributive Justice requires the benefits of the healthcare system to be distributed fairly, that is, in a way that does not discriminate against individuals or groups based on who they are.

The outer-sphere precepts honor society’s right to accrue optimal benefits from whatever collective resources society provides toward healthcare. That is, the outer-sphere precepts recognize society’s legitimate interest in limiting and equitably distributing those collective resources – and indeed, recognizes its ethical obligation to do so.

Medical Ethics And the Spheres

With this framework it is easy to see why the American healthcare system is presently inequitable and unethical. A hallmark of our present system is the lack (thanks to our culture of no limits) of any attempt to define effective outer-sphere societal norms, which would bound the appropriate behavior of individual physicians and patients. This deficiency makes it entirely feasible, and very common, for some patients to soak up a disproportionate share of publicly funded healthcare resources, while others (though they are also paying into the system) are left with next to nothing.

Achieving equity should have nothing whatever to do with adjusting the inner-sphere precepts. Individuals in the United States (to paraphrase the Declaration of Independence) have a self-evident right to their individual autonomy. The inner-sphere precepts are granted to us by our founding documents, and as Americans we should avoid modifying the inner-sphere precepts at all costs, since, once we do, we are abandoning our foundational principles. (This means that the Millennialists have done more damage, with their New Ethics, than merely harming doctors and patients. They have begun – or continued – undermining the principle of individual autonomy upon which the United States was founded. ) (Sorry to have to mention it.)

It is the outer-sphere precepts – those that can be negotiated legitimately by society, and which can legitimately limit the scope of inner-sphere behaviors – that we need to get into proper order.

A properly functioning system of medical ethics, therefore, would require society to devise workable outer-sphere precepts, and through these ethical precepts, establish transparent rules for setting necessary limits on collective healthcare spending. Then, within that system of rules, doctors and patients would work together, under a fully restored doctor-patient relationship, to assure that every patient has access to all legitimately available medical options. And the doctor would be allowed (and expected) to leave no stone unturned in obtaining those legitimate medical services for his/her patient.

This arrangement is analogous to the attorney-client relationship, where the attorney, acting within the bounds imposed by the law (outer sphere norms), is expected to do everything within his/her power to see that the client gains every conceivable, allowable advantage (inner sphere behavior) as they navigate the complex legal system.

To further illustrate this point, we Americans are now engaged in a debate over whether the Christmas Underwear Bomber ought to be eligible to receive all the legal protections afforded to an American citizen under the law. It is notable that ALL the discussion in this case is in regard to whether American outer-sphere legal norms should apply to the terrorist. Nobody is suggesting that his attorney ought to abrogate his (or her, as the case may be) sacred “inner-sphere” obligations to this client, in order to achieve some sort of “fair distribution” of society’s legitimate interests. Nobody expects the terrorist’s attorney to refrain from advising him remain silent, for instance, even though that silence may expose us all to substantial additional harm. The lawyer’s inner-sphere obligations are secure, even here. Rather, the argument we’re having is strictly limited to how we should apply outer-sphere legal protections to this case.

It is the right argument to have. And it’s the very argument we should be having in regard to medical ethics.

And as much as DrRich does not like lawyers, he very much admires the tenacity with which they have preserved their fiduciary relationship with their clients – even in cases like this one. If physicians (and their organizations) had behaved with the professional integrity displayed by the despised attorneys, doctors and their patients would be in much less difficulty today.

A Plea

It is instructive to re-consider the New Ethics, which now has been formally implemented by the Millennialists, in light of DrRich’s proposed two-sphere system of ethics (which he audaciously labels “right ethics,” but to show his humility he will not use caps). The New Ethics can be seen to have resulted by the simple expedient of moving the outer-sphere principles of Societal Beneficence and Distributive Justice (lumped together as Social Justice) down into the inner sphere, where individual doctors are expected to deal with them.

You can’t actually do that, of course, because these are intrinsically outer-sphere norms. But nonetheless, New Ethics formally puts doctors into the position of having to serve the best interest of their patients (individual beneficence and autonomy) while at the same time, covertly rationing their patients’ healthcare (societal beneficence and distributive justice). It is quite impossible for individual physicians to reconcile these competing interests in any equitable sense, and charging them with the job of doing so is illogical, nonsensical – and (DrRich respectfully submits) unethical.

Doctors and patients would be much better served if physicians’ professional organizations, such as the ACP, would revisit their new-age Physician’s Charter on ethics. DrRich understands that our modern society is exceedingly reluctant to establish outer-sphere rules for limiting pooled healthcare resources, and for distributing them equitably. But that reluctance is not a sufficient justification for physicians themselves, through their professional organizations, to initiate and implement new ethical standards that sacrifice their sacred obligation to their patients.

My goodness, can we not muster up at least the ethical sensibilities of lawyers?

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