Philip J. Candilis, MD, DFAPA

[[{"type":"media","view_mode":"media_crop","fid":"44411","attributes":{"alt":" Â©Sebastian Gauert - Shutterstock.com","class":"media-image media-image-right","id":"media_crop_1675428892351","media_crop_h":"0","media_crop_image_style":"-1","media_crop_instance":"4966","media_crop_rotate":"0","media_crop_scale_h":"125","media_crop_scale_w":"175","media_crop_w":"0","media_crop_x":"0","media_crop_y":"0","style":"float: right;","title":" Â©Sebastian Gauert - Shutterstock.com_.jpg","typeof":"foaf:Image"}}]]Recent revelations of physician behavior with patients under anesthesia have raised new questions of what it means to be a professional.

 Does unwitnessed behavior, behavior away from the office, or behavior with some expectation of privacy insulate professionals from criticism, or are standards of professional behavior tied to social expectations in every setting? Should the editors of the 

 even have exposed the otherwise secret behavior? Perhaps they undermined patient confidence in ways that are more destructive than the behaviors themselves. Physician health programs (PHPs) are among those deeply concerned with the professionalism of their community and balance similar concerns in ways that may be instructive to the debate.

The exposure of unprofessional behavior in an operating room may not immediately look like an opportunity to review physician health, but a closer look raises inevitable parallels. In the same way that surgeons, or any colleagues, may overstep professional bounds, physicians who are “disruptive” or “impaired” may come to the attention of PHPs. Because the consequences of unacceptable or risky behavior can be as difficult to discern in real life as they are clear in the pages of the 

, disagreement over referral, treatment, and monitoring of our physician-colleagues can also be a focus of heated debate.

Professional guidance from the Joint Commission and the American Medical Association is clear that behaviors that affect patient safety and communication among clinical teams must be a focus of physician communities.

 And commentators on medical professionalism are clear that positive character traits are necessary to support professional ideals.

 But how far can the regulation of medicine extend without becoming Orwellian? It may not seem fair that behaviors or conversations never intended for the light of day are held to standards of professional scrutiny.

It may be tempting, for example, to apply Tarasoff-like language to the question. “The protective privilege ends where the public peril begins,” wrote the California Supreme Court in its famous decision creating the duty to protect.

 For the purposes of criticizing or sanctioning physicians acting in an unseemly manner, confidentiality might be expected if the patient is unaware. This would be in keeping with the tolerance of macabre or sick humor in medicine generally, or the frankness of certain settings such as mortality and morbidity conferences where colleagues are expected to share their views freely.

But does it translate to unprofessional displays that involve other persons, even though they are unaware? Does the element of witnessing or publicity make the difference? Treating anyone as a means to an end, including humor, would seem to violate any number of medical principles. These range from respect for others, to dignity, collaboration, and fiduciary responsibility-that special relationship of trust and confidence that guides all medicine. Indeed, keeping such behavior secret does more to undermine patient confidence than its exposure ever could. It is laudable to overcome the perception of physicians protecting their own and act as the editors of the 

 did by publishing the report. Any patient- centered ethic requires nothing less.

At the same time, the author and institution of the report in the 

 are anonymous. Is this hypocritical in light of the journal’s effort to expose previously secret behavior? Does this feed the concern that physicians improperly protect their own? It should not. It is entirely reasonable to assume that an early backlash against the reporter and the institution would do more harm than good. And protecting the whistle-blower is a time-honored tradition in law and governance.

PHPs, too, worry about the behavior of physicians out of sight of patients, from driving under the influence to domestic violence. PHPs are part of a system that monitors and treats physicians with behaviors that arise from illness, stress, or substance use. At the same time, PHPs strive to maintain the confidentiality of monitoring and treatment. As a diversionary process that supports rehabilitation and recovery rather than sanctions in carefully defined cases, PHPs balance responsibilities to physicians, the community, and the profession much as the 

 editors did. The balance of exposure and protection is a complex negotiation in the land between monitored physicians and their state medical boards.

In a practice that exemplifies this balance, a number of boards and PHPs refer physicians to the well-known PRoBE program (Professional/Problem-Based Ethics). PRoBE reviews the path that led physicians into monitoring. The failure to recognize personal needs and health, or to balance personal and professional responsibilities, is a common theme among referred physicians. PRoBE recognizes the demands of an unforgiving medical culture but also examines the virtues that define professional behavior. This balance serves to promulgate important community standards while tying the physician’s experience to personal growth. At the culmination of the program, participants are asked to re-assess their behavior in light of the professional virtues they identified.

PHPs often succeed by managing the balance of professionalism and confidentiality with the same wisdom as the editors of the 

. With a 75% success rate in one classic study, PHPs restore physicians to practice with a sensitivity to the needs of both individual physicians and the community.

 Their mission to emphasize treatment and professional growth, while reporting carefully to state boards, can reassure patients and hospitals and simultaneously safeguard physician confidentiality. Evidence of strong physician satisfaction with one of the core PHP interventions-peer support groups-and lower malpractice risk among those who complete a monitoring program are among the outcomes indicating the successful negotiation of a difficult enterprise.

 It may be clear that PHPs find similar ways to support medical professionalism while wrestling with the very questions faced by the editors of the 

Dr Candilis is a Clinical Professor of Psychiatry at George Washington University School of Medicine and Health Sciences and Howard University College of Medicine, and Director of the Forensic Psychiatry Fellowship in the department of behavioral health at Saint Elizabeths Hospital in Washington DC. He is a former Assessment Director and Associate Director of the Massachusetts physician health program. He reports no conflicts of interest concerning the subject matter of this article.

 The Joint Commission. Behaviors That Undermine a Culture of Safety. Sentinel Event Alert. July 9, 2008. 

http://www.jointcommission.org/assets/1/18/SEA_40.PDF

 American Medical Association Council on Ethical and Judicial Affairs. Ethical Opinion E-9.045: Physicians With Disruptive Behavior. 

https://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion9045.page

 Wynia MK, Latham SR, Kao AC, et al. Medical professionalism in society. 

 Pellegrino ED. Professionalism, profession, and the virtues of good physicians. 

Tarasoff v Regents of the University of California

 Knight J, Sanchez L, Sherritt L, et al. Outcomes of a monitoring program for physicians with mental and behavioral health problems. 

 Hu YY, Fix ML, Hevelone ND, et al. Physicians’ needs in coping with emotional stressors: the case for peer support. 

 Sanchez L, Candilis P, Arnstein F, et al. Effectiveness of a unique support group for physicians in a physician health program. 

 Brooks E, Gendel MH, Gundersen DC, et al. Physician health programmes and malpractice claims: reducing risk through monitoring. 

Articles

How far can the regulation of medicine extend without becoming Orwellian?

Physician Health and Professional Secrecy

Discussions of psychiatric ethics often devolve into discussions of applicable law. Although ethics is often operationalized by a society's laws, ethics differs dramatically in its foundations, framework and purpose. The distinctions between ethics and law become increasingly important as more and more practitioners encounter the legal system, whether by committing patients, advising guardianship, or participating in other administrative or criminal proceedings. Many practitioners struggle to present material governed by medical ethics to a forum governed by an almost alien paradigm--an ethic of arcane precedents and procedures. Consequently, distinguishing what is legal from what is ethical is not merely an academic exercise but a practical one as well.

Broadly speaking, ethics concerns itself with why and how one ought to act. It is derived from expansive theories of right and wrong. In the most dominant current view, theories give rise to principles that, in turn, give rise to rules of conduct. In Western thought, the earliest philosophers (e.g., the pre-Socratics) developed certain rules of thought, provoked disagreements and gave birth to opposing rules. Constant modifications rooted in multiple cultures addressed the positive obligations of one person to another and set ideals to be met by both commoner and king. This evolution resulted in a body of work rich in influences and models of thought.

Law, particularly American law, may be viewed as more derivative and more structured than its ethical counterpart. American law, derived as it is from codes of English common law, concerns itself primarily with the rules that stabilize social institutions. It is less concerned with promoting social ideals. This is not merely a function of the law's dependence on precedent and the principle of 

 (Latin for "let the decision stand"). It is a function of deciding when to act--when to bring the full force of social sanction to bear on individual citizens and their specific acts.

This distinction is often characterized as the difference between moral rules and moral ideals. Legal theorists write frequently on the need to distinguish between a broken rule and an unattained ideal. Most argue that exemplary, supererogatory or otherwise morally extraordinary behaviors should not be enforced by law. Charitable acts and rescues fall into this category, as might manners and dress codes. Law is generally reserved for those rules critical to the maintenance of the social fabric, including safety, contracts and broad conceptualizations of the common good.

Legal scholar H.L.A. Hart (1961) expressed this distinction in a manner well known to the legal tradition . By balancing burdens and benefits to society, he described a limit to the amount of law enforcement society can afford. In this view, the burden on the community may be too great to enforce every moral wrong: there may be great difficulties of proof, overburdening of the courts or hampering of particular social institutions (e.g., commerce).

Hart went further, however, in identifying two particular areas many recognize intuitively as distinctions between law and ethics. The first is described as immunity from deliberate change, a property of ethics but not of law. Law, for example, can be altered by the deliberate act of a legislature and applied at a specific time. This is hardly the case for ethics, which awaits changes in sensibilities, mores and community values.

The Patient Self-Determination Act (PSDA), for example, was passed in 1990 and came into action on a set date in early 1991. However, the moral pressure toward identification of proxy decision-makers (which the PSDA made a legal requirement) had been gaining momentum for some time. It represented more a movement than an event. Patients and physicians had been working to change the moral landscape for a generation before the law changed matters with the stroke of a pen.

The second distinction in Hart's well-known analysis underscores the form that moral pressure often takes. While law requires citizens to avoid certain behaviors under penalty of physical or economic harm, ethics utilizes pressure of a different sort. Ethics appeals to the ideal or purpose a rule serves. It appeals to conscience or regret, to guilt or remorse. Sanctions may consequently include social disapprobation or isolation within one's community. This is a qualitatively different response from that of the law.

An extension of this is the law's focus on the negative obligations of one citizen to another--with what an individual cannot do without social sanction. It is a reminder of the law's focus on institutional stability rather than social ideals. It is not law, but ethics, that addresses the positive obligations of care and cure that concern medicine most deeply (Morreim, 1991).

Other models of ethical reasoning underscore this difference. Ethics often sets multiple thresholds for proper decision-making, identifying behavior as obligatory, permissible or prohibited. Ethics generally functions higher in this spectrum than law, which is often seen to work at the level of prohibition rather than obligation. This is reminiscent of the distinction between negative and positive obligations, and again distinguishes ethics from law.

Consequently, law is a reactionary creature. It does not easily adopt the creative, prospective, interventionist solutions of most ethics frameworks--frameworks that oblige participants to avoid or prevent ethical problems. The law, in its conservatism or restraint, as it is sometimes called, often chooses non-interference over intervention and allows communities (that is, jurisdictions) to develop their own solutions. Ethics has greater freedom to take a more prescriptive and generalizable approach.

An example of the more flexible nature of ethics is the conduct of ethics consultation in end-of-life care. Ethics consultants are taught to investigate all-important relationships that may inform clinicians about an incompetent patient's treatment wishes. In certain jurisdictions, however, there is a legally prescribed hierarchy of family members who must be consulted.

This distinction returns us to the strict emphasis on precedent in the legal system. Rather than support precedent as a force stabilizing societal rules, ethics argues that tradition is not moral warrant. In ethics, it is not sufficient that a problem has been solved a certain way in the past. Principles and rules must be derived in a manner that acknowledges the richness of each case. Indeed, ethics as a field has recently been developing a more casuistic (i.e., case-based) combination of principled and narrative approaches. This method allows the individual narrative (or story) to provide more context than the law usually affords.

John Rawls (1971), America's great modern philosopher, underscored the importance of the strict legal process that defines law. He wrote of legal procedures as the moral currency of law. Rawls recognized that perfect justice may be unattainable in all circumstances and that our system is one of imperfect procedural justice. That is, complex trial procedures and rules of evidence are the chief components of the law. Process provides the primary moral assurance of just outcome. If it is not followed, justice is not served. Hence the force of technicalities in determining the outcome of legal cases.

Ethics provides a greater balance of process and outcome by further emphasizing outcome. Although there is a mainstream process for coming to an ethical decision (often deductive and consensus- and principle-driven), the outcome must be right as well. If the process has somehow ignored relevant information, it is mutable and flexible. Not so the law.

What does this discussion mean for the practitioner, who must respond to a subpoena, give a deposition or otherwise appear in court? Knowing how to function within the law's minimalist, procedural and rule-driven confines is critical to success in its halls. Grilling one's own attorney on the rules that will be followed is an important starting point. Knowing that set procedures of qualification, direct examination, cross-examination and rebuttal frame one's testimony goes a long way toward calming the anxiety most practitioners experience in court.

Moreover, preparing a script for testimony allows practitioners to fit their expertise into the requirements of the legal setting. The challenge of direct and cross-examination is to express clinical thinking in terms recognizable to the law. Intended as a forum accessible to the layperson, the courtroom does not value jargon and specialized vocabularies. Physicians must fit clinical data into the specific legal language governing the hearing.

It is the jurisdiction's legal definitions that will often determine the relevance of clinical information. Because standards may differ from court to court, clinicians must apply their testimony to the frameworks known to the jurisdiction (e.g., dangerousness, best interests, substituted judgment). This makes for a more seamless transition from the consultation room to the courtroom.

Furthermore, the adversarial legal process challenges psychiatrists to re-think the strengths and weakness of their clinical logic. Because psychiatrists are not used to exposing the collegial clinical ethic to the ethic of adversarial legal procedure, rehearsing responses to potential criticism is useful preparation. It surprises many first-time witnesses to find that criticism of their testimony is often not clinical in tone. Rather, it derives from the understanding of a layperson--an attorney or judge who is not familiar with the clinical meanings practitioners commonly take for granted. For example, merely describing schizophrenia as disorganized thinking and impaired contact with reality disabuses some laypeople of their misunderstanding of the illness as multiple personalities. This description, simplistic to psychiatrists, is more likely to convey information to a court about insanity, a legal concept it is asked to address with clinical information. Being clear in the use of clinical terminology and making it relevant to the operant legal criteria goes a long way toward blunting criticism of one's testimony.

These distinctions notwithstanding, law must have its roots in ethics. It must support the right and the just. It must emanate from the mores and values of the community. From the ancient meaning of these terms, it must draw its strength from society's traditions of what is good. From this starting point, however, the fields diverge. They are distinguishable and distinct. Recognizing the unique qualities of each enriches the experience of any practitioner who must negotiate the path between them.

 Hart HLA (1961), The Concept of Law. Oxford, England: Oxford University Press, pp171, 175.


 Morreim EH (1991), Competence: at the intersection of law, medicine, and philosophy. In: Competency, Cutter MA, Shelp EE, eds. Dordrecht, The Netherlands: Kluwer Academic Publishers, pp93-125.


 Rawls J (1971), A Theory of Justice. Cambridge, Mass.: Harvard University Press, pp85-86.

Discussions of psychiatric ethics often devolve into discussions of applicable law. Although ethics is often operationalized by a society's laws, ethics differs dramatically in its foundations, framework and purpose. 

Author | Philip J. Candilis, MD, DFAPA

Articles

Physician Health and Professional Secrecy

Distinguishing Law and Ethics: A Challenge for the Modern Practitioner