Practicing preventive ethics--the keys to avoiding ethical conflicts in health care.

As a physician leader, you have two ways to respond to ethical challenges in health care organizations:

1. Wait for ethical problems or conflicts to occur and then respond to them.

2. Practice preventive ethics to keep conflicts from arising.

Experience teaches us that the reactive approach can take an unacceptable toll on patients, their family members, physicians, other members of the team, and even the culture of the health care organization.

The culture of an organization includes its mission statement and policies, but also its actual practices--from how it treats its physicians, employees, and patients to its budget priorities.

Don't get me wrong, when ethical conflicts occur, we need to respond to them rapidly and effectively. They need to be managed.

However, physician leaders also need to lead their organizations by adopting the second approach to ethical conflicts--developing effective organizational policies and practices designed to prevent ethical problems from occurring in the first place.

In other words, preventive ethics should become one of the basic tools in every physician executive's leadership tool box. (1,2) Reactive ethics won't be enough and may come too late.

The results of ACPE's ethical behavior survey underscore the myriad of ethical challenges facing physician leaders and the impact ethical breaches can have on an organization's good name and culture.

When an ethical problem arises, the professional integrity of your organization's culture is at stake and, should it be lost, you will be reduced to managing things, not leading people.

Conflicts of interest, fiduciary care

As the survey showed, conflicts of interest are often at the heart of ethical dilemmas. Conflicts of interest are well understood in ethics. They involve conflicts between a person's obligations to others and their own self-interest. (3,4)

Conflicts of interest are ethically problematic because they pose a threat to the routine fulfillment of fiduciary responsibility, the basis of every health care organization's obligations to its patients.

Ethically responsible management of conflicts of interest keeps fiduciary responsibility to patients the primary consideration and motivation for clinical judgments and decision making.

By contrast, ethically irresponsible management of conflicts of interests occurs when self-interest becomes primary without ethical justification.

The ethical concept of the physician as fiduciary of the patient was introduced by two 18th century physicians, Dr. John Gregory (1724-1773), a Scottish physician-ethicist, and Dr. Thomas Percival (1740-1804), an English physician-ethicist.

Gregory and Percival developed this concept as the core of what Percival was the first to call professional medical ethics. They did so largely in response to the entrepreneurial nature of medicine in 18th century Britain and the English colonies in North America. (3)

At that time, there was no single pathway into medical practice, with surgeons and apothecaries training by apprenticeship, physicians by attending courses at a medical school or simply purchasing their degree, and most people "self-physicking,"--diagnosing and treating themselves with tried-and-true and sometimes experimental home remedies.

Only the rich could afford to purchase the services of physicians and these folks paid the piper and called the tune. Physicians were hired and fired completely at the discretion of the head of household. The world of private medical practice was one of intense competition with little of the economic security that physicians now take for granted.

To be successful in this crowded, absolutely unforgiving medical marketplace, physicians had to do what they could to stand out and compete successfully.

So they developed idiosyncratic theories of health and disease and secret remedies or "nostrums" that they would sell directly to the sick. Other physicians were not colleagues; they were the competition to be attacked through pamphlets and broadsides and sometimes even physically assaulted.

Gregory and Percival set out to reform medicine into a profession worthy of the name. In doing so, they gave us the ethical concept of the physician as fiduciary of the patient. (Although neither used the word, "fiduciary," they had the concept.)

This ethical concept, which is the foundation of medical professionalism, has three components.

1. The physician should be competent. Physicians and surgeons should practice and teach medicine and conduct research to standards of intellectual and moral excellence. By this, both Gregory and Percival meant that physicians should base theories of health and disease, as well as clinical practice and research, on the best available science.

2. Physicians and surgeons should use their competence primarily for the benefit of patients, keeping individual self-interest in a systematically secondary place.

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3. Physicians and surgeons should maintain and pass on medicine as a public trust in service to patients and society, not as a guild or corporation that puts group self-interest and "corporation spirit" first.

The state of fiduciary professionalism today

The ethical concept of the physician as fiduciary of the patient gained traction over the ensuing two centuries. We should not, however, be sanguine about the current state of professionalism in medicine.

Well-informed critics, such as David Rothman, (5) remind us that the state of professionalism in medicine may be weaker than any of us want to admit. The ACPE ethics survey shows that physician leaders are clearly concerned about potentially unethical business practices among organizational leaders and physicians that impact culture itself.

I find it especially interesting that, while most respondents are confident that colleagues in their own organization are not involved in unethical business practices, many are concerned about unethical business practices of other health care organizations in their communities.

From the perspective of other health care organizations in a community, one's own organization, of course, is among those "other" health care organizations. That should give us considerable pause.

Practicing prevention

Physician executives can wait for potential unethical business practices to occur and then react to them. But if poor management of conflicts of interest is prolonged before organizational leaders become aware of these conflicts, they can do tremendous, even irreversible damage to the organization's culture.

So it's critical that physician executives take a preventive ethics approach to individual and organizational conflicts of interest.

1. The first step is strengthening your fiduciary professionalism. This ethical concept should be the foundation for your organization's culture. The animating concept should be co-fiduciary responsibility for patient care. (6)

The concept of co-fiduciary responsibility means the organization's leaders--physicians and non-physicians alike, including the board of directors--share ethical responsibility for the quality of patient care.

2. The next step involves close attention to enforcing mission statements. Mission statements should include an explicit commitment to co-fiduciary responsibility and its expectations. There should be policies in place to enforce co-fiduciary responsibility and these policies should be routinely and fairly implemented.

Rhetoric without enforceable and enforced policies becomes mere rhetoric. (7) In health care organizations mere rhetoric expressed in lofty but never-enforced mission statements promotes cynicism or even worse, ethical consequences, especially for the organization's physicians and other health care professionals.

3. The next step should be developing and enforcing clear, detailed policies on reporting and managing individual and organizational conflicts of interest. (4) These should begin with a definition of "conflict of interest," because everyone in a health care organization may not understand what a conflict of interest is and why they must be responsibly managed.

Conflict of interest policies should require that all conflicts of interest of individual physicians, physician leaders, nonphysician leaders and board members be reported regularly.

Financial conflicts of interest are often complex. The scope of financial arrangements considered to involve conflicts of interest from the organization's perspective should be made clear in its policies. Board members' financial arrangements that constitute conflicts of interest such as contracts between the health care organization and their own business ventures must be scrutinized, as well.

Policies should set under which self-reported conflicts of interest will be evaluated. The need for transparency is crucial. Everyone must be able to have confidence that the evaluation process will be rigorous and fair.

Conflicts of interest threaten professional integrity. In the evaluation process, the burden of proof should be put on the acceptability of a conflict of interest. George Khushf and Robert Gifford recently suggested that conflicts of interest should be evaluated against four criteria. (8)

* Intensity--the percent of a person's earnings represented by the financial interest in question.

* Immediacy--asking whether the conflict of interest is such that the first thing the physicians think about when making a clinical decision is the economic impact it will have on them, rather than the patients' health-related concerns. The parallel organizational question is whether organizational leaders are first thinking about the economic impact of their decisions on the organization or about how to fulfill the organization's fiduciary responsibilities to its patients.

* Systematic nature of the conflict of interest--does its influence pervade the process of decision making and patient care?

* The fourth concerns is whether individuals are placed under a conflict of interest alone, in isolation from colleagues who might be able to act together to maintain and protect their professional integrity and that of the organization.

The more intense, immediate, systematic, and individual the conflict of interest is, the greater the threat that it poses to the fiduciary professionalism of physicians and health care organizations.

Conflict of interest policies should include provisions for enforcement. When a conflict of interest has been reliably judged through a transparent and fair process to be ethically unacceptable, then the involved party should be given clear instruction to eliminate the conflict of interest by eliminating the financial relationship that created it or face loss of employment and/or privileges.

When conflicts of interest are judged ethically acceptable, such as accepting small gifts from vendors like a holiday fruit basket for office staff, then they should be routinely monitored to prevent them from evolving into unacceptable conflicts of interest.

Unacceptable organizational conflicts of interest could emerge in contracting with physician groups for services or rental of facilities or with suppliers who offer extraordinary discounts in exchange for exclusive purchasing.

Conflict of interest policies should set out clear criteria for evaluating organizational conflicts of interest. Setting up an "ethics hotline" for employees to anonymously report suspicious practices could be one component of such a policy, but should not be mistaken for a comprehensive organizational conflict of interest policy. Hospital ethics committees can and should be recruited to develop organizational conflict of interest policies. (9)

Regaining lost trust not easy

The stakes for physician executives for providing, or failing to provide, organizational leadership for the prevention of ethically unacceptable conflicts of interest are the same for us as they were for Gregory and Percival--whether patients, payers, and society should be willing to trust physicians, physician leaders and health care organizations intellectually and morally.

Poorly managed conflicts of interest distort clinical judgment and decision making, putting patients at risk of under-treatment, mistreatment or over-treatment and sometimes putting their families at considerable financial risk, given increasing deductible and co-payments in health insurance plans.

Poorly managed conflicts of interest at the level of organizational leaders and the organization itself can and will undermine public trust and confidence in health care organizations.

Americans justifiably become a very tough sell when our trust is betrayed. Who among us will be inclined to believe the next director of the Central Intelligence Agency when he or she reports that an enemy of the United States has weapons of mass destruction?

Suppose you are that next director and you rightly judge the evidence to be very convincing indeed. The intellectual and moral authority that you need to convince us and our elected leaders of a grave peril may have been squandered by your predecessors.

We are justifiably reluctant to give our trust back once our trust has been betrayed. Being a physician executive of a health care organization that has betrayed the public's trust will be an equally grim undertaking.

Physicians and physician leaders should not want to work for health care organizations that are poorly led with respect to conflicts of interest. Such organizations are at serious risk of betraying the trust of patients and the communities that they serve.

Taking only a reactive approach to conflicts of interest or, worse, ignoring them altogether and hoping they will go away or that no one will notice, simply will no longer do.

The ethical standard of leadership with respect to the individual conflicts of interest of physicians and of organizational leaders and the conflicts of interest of the organization itself is a robust, sustained, high-quality preventive ethics approach.

References

1. Chervenak FA, McCullough LB. "Clinical guides to preventing ethical conflicts between pregnant women and their physicians." Am J Obstet Gynecol 1990; 162: 303-307.

2. Chervenak FA, McCullough LB. "An ethical framework for identifying, preventing, and managing conflicts confronting leaders of academic health centers." Acad Med 2004; 79: 1056-1061.

3. McCullough LB. John Gregory and the Invention of Professional Medical Ethics and the Profession of Medicine. Dordrecht, The Netherlands: Kluwer Academic Publishers, 1998.

4. McCrary SV, Anderson CB, Jakovljevic J, Kahn T, McCullough LB, Wray NP, Brody BA. "A national survey of policies of disclosure of conflicts of interest in biomedical research." N Engl J Med 2000; 343: 1621-1626.

5. Rothman D. "Medical professionalism: focusing on the real issues." N Engl J Med 2000; 342: 1283-1286.

6. McCullough LB. "A basic concept in the clinical ethics of managed care: physicians and institutions as economically disciplined co-fiduciaries of populations of patients." J Med Philos 1999; 24: 77-97.

7. Chervenak FA, McCullough LB. "Physicians and hospital managers as cofiduciaries of patients: rhetoric or reality?" J Healthcare Manag 2003; 48: 172-179.

8. Khushf G, Gifford D. "Understanding, assessing, and managing conflicts of interest." In McCullough LB, Jones JW, Brody BA, eds. Surgical Ethics. New York: Oxford University Press, 1998; 342-366.

9. McCullough LB. "Preventive ethics, managed practice, and the hospital ethical committee as a resource for physician executives." HEC Forum 1998; 10: 136-151.

By Laurence B. McCullough, PhD

Laurence B. McCullough, PhD, is professor of medicine and medical ethics and associate director for education in the Center for Medical Ethics and Health Policy, Baylor College of Medicine, Houston, Texas. He is also adjunct professor of ethics in obstetrics and gynecology and of public health at Weill Medical College of Cornell University in New York City and adjunct professor of philosophy at Rice University in Houston. He currently teaches the ACPE Interact course, Ethical Challenges of Physician Executives.