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The ethics of teaching ethics.

Recently, some state boards of professional licensure have begun to turn to ethicists for assistance in evaluating the behavior of professionals against whom complaints of unethical conduct have been brought. In the following case, a state board has made it a condition of a health professional's reinstatement that he take a course in medical ethics. Although much disguised here to preserve the anonymity of all parties, this case is based on an actual series of events.

Dr. Emil Gessup was a plastic surgeon who became well known in the Williamstown area during the last two decades for his successful major reconstructive work with the victims of several well-publicized accidents. He also had a solid reputation among internists in the area, especially for his skill in removing, almost without a trace, the small beginnings of basal cell carcinomas on the face and neck.

Moreover, after insurance companies began covering outpatient surgical procedures, Dr. Gessup began performing such procedures in his office whenever doing so posed no added risk for the patient. However, over the last two and a half years, several dozen unrelated complaints of professional misconduct had been filed with the state licensing board, including a number of complaints of sexual misconduct.

Although no criminal charges had been filed, eight different female patients who did not know each other and who were unaware that other complaints had been filed against Dr. Gessup, had testified to the board that while they were under nitrous oxide anesthesia, Dr. Gessup had touched their sexual organs. When faced with these charges, Dr. Gessup challenged the legal jurisdiction of the state board to pursue its investigation. The court found in favor of the board and ordered Dr. Gessup to respond to the board's charges. Dr. Gessup denied any wrongdoing and testified that he had performed a thorough examination to determine whether these patients, who had all presented for the removal of suspected basal cell tumors from the face or neck, had systemic infections as might be indicated by lymph node enlargement He denied that palpating patient lymph nodes in the breast and groin areas was unethical.

The board was particularly convinced by the testimonies of one patient and that of Dr. Gessup's receptionist. The patient had emerged from anesthesia early and began a struggle with Dr. Gessup, which caused the receptionist to enter the operatory. In addition to these charges, other patients had reported that Dr. Gessup had falsified insurance reimbursement claims. The board found that in violation of his professional license Dr. Gessup had wrongfully palpated the genitalia of the complainants, and had misrepresented treatments performed in reimbursement claims filed with several insurance companies. Under state law, the board could issue a formal reprimand, or temporarily suspend Dr. Gessup's license and set "reasonable" requirements for reinstatement, or permanently revoke the license. The board voted to suspend his license and stipulated the following conditions for reinstatement: Completion of a refresher course in diagnosis and treatment of basal cell carcinomas of the face and neck; completion of one year of unpaid supervised practice for which he must compensate the supervising physician; and passing a course in professional ethics at the state's medical school.

Two months prior to completing his one year of supervised practice, and after completing the diagnosis course, Dr. Gessup contacted the Dean of the school in which you teach a required medical ethics course. Dr. Gessup communicated the board's findings, and requirements, and requested permission to enroll in the course so that he might regain his license as soon as he has completed his supervised practice.

The course is conducted in large lectures followed by small discussion groups, and is required of all fourth-year medical students. One case is discussed in each of the four 1 1/2 hour discussion sessions. The cases are designed to develop particular, well-defined moral reasoning abilities. The program is well-known and widely respected. The Dean has consented to Dr. Gessup's request and has confirmed to the board that the school will permit him to take the course. Now, the Dean is informing you that you should plan to include Dr. Gessup in your course. What should you do?

The case raises the question whether it is ever morally wrong to teach ethics. Our answer is, "sometimes, yes." Two issues centrally concern the ethicist's moral responsibility toward the public and toward the practitioner.

Public Responsibility

Does an ethicist bear some responsibility for the conceptions that others form of the effects on a student of having completed a course in professional ethics? We believe so.

Let us begin with ethics courses in a philosophy, psychology, or theology department. In such courses, the instructor is teaching about philosophical ethical theories, or theories about how people actually do behave or think in ethically significant circumstances, or about moral doctrines within a particular religious tradition. There is, or should be no assumption by the public that one is teaching students how to behave, or that one is instilling a particular set of ethical values that then form behavior. Hence, the appearance on a transcript of an "A" for a course in "Classical Ethical Theory," or "Moral Development," or "Jewish Ethics" should not be understood by an employer or by other members of the public to be evidence that the student is of good moral character or can be expected to behave in a particular fashion. This is in part because knowledge of theory does not necessarily imply that ethical behavior will ensue.

There is an important difference in teaching ethics in the setting of a professional school, however. When a medical school, for example, certifies that a student has satisfactorily completed certain coursework, it is certifying that the student meets the standards of educational preparation for professional practice. Consequently, the public served by that practitioner can assume the practitioner will act in certain ways, namely, in accord with the relevant bodies of knowledge and values of the profession. Indeed, it is precisely to foster such public expectations and confidence regarding medical practitioners that the state relies upon the school's certification of the practitioner's knowledge, and requires such certification as a condition for taking the licensing examination. Presumably when the medical school certifies that Dr. Gessup has completed the refresher course in the diagnosis of basal cell carcinomas, the public is given assurance that the relevant bodies of knowledge will guide his practice.

How, then, are we to look on courses in professional ethics in professional schools? Does successful performance in these enable the professional school to certify that its graduates will practice according to the values of the profession? If knowledge about ethics does not necessarily imply corresponding conduct, then the answer must be no. Yet the public may assume that such courses do imply appropriate conduct. Could it be that it is never appropriate to certify that a student has completed a professional ethics course if that is typically taken to mean that the person meets the nonnative standards set by the profession? If there is something unusual about professional ethics, such that knowledge of its contents does not imply practice, then a good prima facie case might be made for this dissociation lest the public be misled. Still, many professional schools do certify, among other things, that their graduates have completed a program in the ethics of the profession. What is a medical school certifying when one of its students satisfactorily completes a course in medical ethics? Are medical schools acting wrongly in recording medical ethics courses on student transcripts? And if not, why shouldn't Dr. Gessup be accepted into the ethics course and, upon satisfactory completion, be certified accordingly.)

Professional ethics courses in professional schools presuppose two things. First, they presuppose that reflection, discussion, and exposure to others' reflections on ethical issues in professional practice will facilitate students' ability to apply fundamental ethical commitments to concrete situations. (1) If this were the only relevant presupposition, then the case for admitting Dr. Gessup into the course would be quite strong. More importantly, however, such courses also presume that professional students already possess fundamental ethical commitments sufficient to ground ethical professional practice. Indeed, not to make such a presupposition invites the suggestion that professionals who have not had such courses cannot be ethical in their professional practice ! Once these presuppositions are identified, we can see that the purpose of professional ethics courses is to refine the relevant reflective powers that students already possess in some measure, and assist them to employ these powers in the application of pre-existing general commitments to professional and societal norms. Prescreening and ongoing evaluation of professional school students clearly includes such fundamental ethical commitments within its scope.(2) The absence of certain commitments, particularly to nonmaleficence, patient autonomy, and respect for persons, leaves a void in which professional behavior cannot be grounded. When students lack such norms, modeling on exemplary mentors may help establish those commitments.

The situation is quite different when students have commitments that are antithetical to the basic values of the profession. For example, if a student states she is unconcerned about avoiding iatrogenic injury, that the physician may routinely coerce treatment or that patient privacy and dignity impede physician efficiency, we have good reason to believe she is committed to norms inconsistent with those of the profession. Since we anticipate that her professional behavior will be based on the commitments she does hold rather than those of the profession, her professional behavior will likely not be consistent with the ethical norms of the profession.

And as educators, we know that students sometimes express commitments they in fact do not hold. For this reason, we look to behavior, expecting to find consistency between it and expressed professional commitments. More importantly, there are patterns of behavior that are reasonably taken to demonstrate, if not unsuitable fundamental commitments, at least the absence of suitable commitments for ethical professional practice. Dr. Gessup's behavior surely is of such a sort. We have no doubt that he would be capable of identifying and expressing his commitment to an appropriate set of ethical norms for the profession. Although he might at a later date demonstrate by suitable behavior that commitments to appropriate principles inform his professional life, for the present we must conclude that he lacks the son of fundamental ethical commitments presupposed by admission to professional school. Therefore, what the medical school can certify to the public about its students who take this course-that their ability to apply, in practice, a suitable set of fundamental ethical commitments has been significantly enhanced-cannot be certified in Dr. Gessup's case. In this important respect it would be unethical to teach him ethics.

It might be claimed that the foregoing is sufficient to support an argument that the ethicist has a duty to inform public opinion so that the public will not harbor unrealistic expectations about the relation between ethical knowledge and ethical behavior. If, on this view, public illusions of consistency between principles and practices are dispelled, then it may not be wrong to teach professional ethics in this case. However, it seems odd to suggest that the school that provides professional ethics education should attempt to undo expectations that its graduates will appropriately incorporate professional norms in their professional life and behave ethically. Moreover, the ethicist's duties to inform the public and to refuse to teach when that results in misleading the public are not mutually exclusive. Finally, even if it were true that the ethicist should try to correct public misperceptions regarding the effects of professional ethics education, it is unlikely to be accomplished in the remaining two months of Dr. Gessup's suspension. This brings the rights of the public into direct conflict with those of the suspended practitioner.

In any case, it is the responsibility of the board, as an arm of the state government, to protect the public. The board's perspective may be that requiring an ethics course of Dr. Gessup is appropriate because such requirement sends the public a message that in the opinion of the board Dr. Gessup violated an important norm of professional ethics.

If this is the board's perspective, then it must expect the public to be reassured that such a course would make it more likely that Dr. Gessup would conform his future professional behavior to the ethical norms of the profession, indeed that the course is likely to instill in Dr. Gessup the very kinds of fundamental commitments that educators expect inform the professional behavior of all students. But, we have argued, this reflects a misunderstanding of the primary purpose of the course.

Moreover, if such a course could instill those commitments in a short time in a student who previously lacked them, educators may well lack the expertise to distinguish between those students who master content, and those who, having lacked them, now actually form the requisite affective and volitional moral commitments.

In addition, where prior unethical conduct gives us cause to believe that for a particular practitioner there is a gap between knowing and doing, between cognitive content and affective-volitional disposition, we are rightly concerned that something in the psychological makeup of the practitioner creates this gap. But determining whether Dr. Gessup is psychologically disordered, and if so, whether an ethics course can be an effective form of treatment, requires the expertise of a psychologist or psychiatrist, not that of the teacher of professional ethics.

Thus, if we focus our attention on the community's need to treat and rehabilitate its practitioners wherever possible, we must deny Dr. Gessup access to this course until several questions about his psychological makeup have been answered. Our response would be quite different were there a clear indication that Dr. Gessup's failure to act consistently with an important ethical norm of his profession was not the consequence of psychological difficulties, but was instead attributable to a lack of knowledge of those norms. But this explanation does not fit Dr. Gessup's case. Consequently, for reasons both of the public's interest in effective certification of professional practitioners and in rehabilitation of those who need it, Dr. Gessup should not be permitted access to the course.

The Practitioner's Rights

But what about the rights and well-being of the practitioner himself? As things stand, Dr. Gessup will not be permitted to return to practice unless he takes and passes the course. Given his denials of wrongdoing, Dr. Gessup's interest in the course is likely prompted only because he was so ordered. Even so, educators and jurisprudents might agree that, if there is any value to education, or to rehabilitation, it is because it can sometimes influence behavior, even when a person's past behavior was informed by norms inconsistent with not only those of the profession, but also such basic principles as respect for others.

Moreover, many philosophers and jurisprudents would argue that as a society we are committed to the principle that sentenced criminals can, in theory, be rehabilitated, or at least deterred. So might not Dr. Gessup's "sentence" have the effect of specific deterrence, if not of rehabilitation? Indeed, didn't the board expect that such a course would sufficiently rehabilitate, or at least deter him, so that he would not again abuse his patients? Would it not be morally wrong, then, to deny him access to this educational opportunity on the challengeable assumption that his values, as evidenced in his recent history of sexual abuse, are irrevocably ill-informed?

There is a further moral complexity regarding Dr. Gessup's fights: He has not been charged with any criminal behavior, let alone been found guilty. Instead, the standard applied has been that of the state licensing board, namely, that the panel convened to investigate the charges simply believes they have been substantiated. Consequently we must ask if refusal to accept Dr. Gessup into the ethics course violates his rights by unfairly preventing him from earning his livelihood in the only way he knows how even though he has not been found, through appropriate due process, legally guilty of anything.

A Presumption of Dangerousness

The key to resolving these questions about our moral obligation to Dr. Gessup lies in the concepts revolving around "a license to practice." The state has a significant responsibility for ensuring the safety and protection of the public. It fulfills one aspect of this responsibility by permitting some individuals to engage in potentially dangerous activities and limits the public's risk by issuing licenses to those who have demonstrated that they can engage in the activity in a manner consistent with the public's best interest. Among such activities, for example, are operating motor vehicles on public thoroughfares, operating restaurants, taking care of other people's children (at least in some states), and virtually every activity from barbering to surgery that involves doing something to another's body.

There is a close conceptual link between misconduct and licensure reflected by the criminal code. For example, within the criminal justice system, a convicted felon is prohibited from obtaining a license to own and operate firearms, even if he or she has already carried out the prescribed sentence. It is not just that criminal conviction is evidence of violation of the specific terms of licensure. What is important in the eyes of the law is that a license to engage in a potentially dangerous activity is revocable solely upon proof of dangerousness. Neither contrite admissions of the wrongfulness of the felonious act nor even years of subsequent lawful conduct is sufficient to override this presumption of dangerousness. For the individual has no basic right to engage in dangerous activities. The assignment of that right is reserved to the state, and licensing boards are empowered to find that in many matters a license must be revoked. In a similar way, solely on grounds of proven dangerousness to the public, even absent a felony conviction, the licensing board would be justified in revoking Dr. Gessup's license, and in doing so permanently if it judged this appropriate. Because the standard of proof it uses is lower than that of any court, the licensing board may wish to enable Dr. Gessup to overcome its conclusion that he is dangerous, such as by proving that he successfully complete courses in diagnosis and in medical ethics, and requiring that he complete a year of supervised practice.

Professional licensure law almost always includes language to the effect that the licensee must provide evidence of good moral standing and must maintain and uphold the ethical norms of the profession. In the case of students, the absence of evidence of unethical behavior, as well as positive letters of recommendation, count as evidence of their good moral standing. In addition, other screening and evaluation activities continue during students' professional training. These forms of evidence, then, along with technical training and supervised experience, override the presumption of dangerousness for the students. But when the presumption of nondangerousness is questioned, as when disciplinary procedures are brought against students, they can similarly be prevented by the school from completing their professional education, even if they are at the end of their senior year and are deeply in debt. While this rarely happens, the mechanism is in place to make it possible. For as indicated earlier, the ethics courses we require of our professional students are not intended to overcome "moral deficiencies" in their characters. They are not intended to impart for the first time those sorts of fundamental ethical norms on which both lawful behavior and ethical professional practice depend.

Our point is that those who wish to become licensed to practice must present, in advance of licensure, evidence that overcomes the presumption of dangerousness. Even without a criminal or civil proceeding, the board has been empowered by the state to determine when it has sufficient evidence that Dr. Gessup does not presently demonstrate the prerequisite moral commitments. Assuming that there have been no irregularities in the board's own investigation and proceedings, Dr. Gessup's rights are not violated by the board's finding.

Because there is great social value in exonerating professionals who are falsely accused, and because there is also great social value in rehabilitating professionals found to have violated the norms of their profession, the board will exonerate whenever it can. When it cannot, it will attempt to rehabilitate and educate the professional to deter him from future misconduct. This is especially true when the type of misconduct is not considered to have caused great harm. The board is acting within its authority in determining that Dr. Gessup must meet certain requirements before he can be considered rehabilitated and nondangerous, and before his license can be reinstated. In setting these requirements, the board is not violating Dr. Gessup's rights.

But is Dr. Gessup's participation in an ethics course likely to accomplish the goal of moral rehabilitation for him? Is it likely to instill in him commitments to values that he manifestly does not already possess and thereby enable him to overcome the presumption that he is a dangerous physician? We have already argued that such transformations are not among the ordinary objectives of such a class and that particular psychological expertise would be needed to determine its likely effectiveness in Dr. Gessup's case.

In addition, Dr. Gessup has not only evidenced repeated sexual misconduct but refused to acknowledge that what he did was morally wrong, not just for a physician or health care provider, but for anyone. This is further evidence of a serious moral deficiency. Requiting him to explore ways in which those already committed to the norms of the profession might more perfectly exemplify its values does not seem likely to overcome this deficiency. Since Dr. Gessup does not think that what he did was wrong, the course is not likely to reform his conduct; and therefore he is not likely to meet the material condition of proven nondangerousness implicit in the board's requirement to complete the ethics course. Thus, it is morally defensible, and perhaps even morally required, to refuse him admission into the course.

Finally, even if Dr. Gessup's participation in the course cannot be expected to have beneficial effects for him or for the public, we ought to consider whether his presence would have a beneficial effect on students. Might not the presence of a physician who has been disciplined for sexual misconduct with patients make students take the course more seriously?

He might provide a useful minority viewpoint during the discussion of other cases that would challenge students. Without further data, however, we cannot be certain that Dr. Gessup will play this particular role. Indeed, it is also possible that Dr. Gessup, if encouraged to play a vocal role in the class, will initiate a discussion of his own case, which might have negative effects on other students.

First, if the true reasons for Dr. Gessup's participation in the course become known, students might view his presence as a form of public humiliation engaged in by the school and faculty. This is unlikely to be constructive for the students. Second, we might convey the impression that the purpose of his presence is to give students experience with the profession's judgment of its members. We do not believe that students possess the practical or moral expertise, or the proper standing, to appreciate this at this stage of their training. Third, at the very minimum, Dr. Gessup's presence for, say, rehabilitative purposes (the consequences are worse if he is there simply as punishment), will likely communicate a false message to the students about the course's goals and methods. Finally, it is reasonable to ask what view of the profession is likely to be communicated to students when an exemplar of misconduct is introduced into the formative setting of the professional school.

Knowing and Doing

Knowing will probably never strongly imply doing. This is true whether we are speaking of professional school students or practitioners who have their licenses suspended. Knowing can, however, strongly imply doing when those who know also provide outside evidence of already having done, or at least, of not having failed to do, and when they provide evidence of grasping the fundamental moral principles of doing, that is, of professional conduct. But Dr. Gessup's career has provided ample evidence of unethical behavior and, as yet, no evidence of reform. In such cases, we suggest, knowing would not imply doing at all. Therefore, both in relation to the public and to the students, the school's moral obligation is not to accept Dr. Gessup into the class. In relation to Dr. Gessup's own rights and well-being, there is no overbearing obligation to assist him.

The state has a duty to protect the public, and through its licensing, it creates legitimate expectations by the public that licensees will behave ethically. The ethicist has correlative duties when considering whom to teach in what setting, and especially when certifying to the state that someone has been taught. For these reasons, it is sometimes unethical to teach ethics.
 Reference Notes
 (1) The question of the relative merits of various
 pedagogical techniques to achieve such
 reflection/discussion/exposure as effectively
 as possible is an ancillary, though
 obviously important question.
 (2) The efficiency of the screening and evaluation
 techniques available to this end may
 be uncertain. We are not examining their
 merits here.
COPYRIGHT 1990 Hastings Center
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Copyright 1990 Gale, Cengage Learning. All rights reserved.

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Author:Waithe, Mary Ellen; Ozar, David T.
Publication:The Hastings Center Report
Date:Jul 1, 1990
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