Professionalism in Healthcare: Medical Ethics and Jurisprudence
Sexual conduct between a doctor and a patient…is strictly forbidden. In ethical terms, it’s a never event. In a legal sense, it can be a crime. Physicians know it’s a line that can’t be crossed—it’s a prohibition as old as the Hippocratic Oath.”
by Curtis E. Harris, MD, JD
Editor’s Note: In July 2016, the Atlanta Journal-Constitution released a multimedia investigative series focused on the topic of “Doctors & Sex Abuse.” The paper spent about a year researching this topic after finding that two-thirds of the doctors disciplined in Georgia for sexual misconduct were permitted to practice again.
“Sexual conduct between a doctor and a patient…is strictly forbidden. In ethical terms, it’s a never event. In a legal sense, it can be a crime. Physicians know it’s a line that can’t be crossed—it’s a prohibition as old as the Hippocratic Oath.”1
Their investigation, however, showed that sexual abuse of patients by doctors happens much more often than expected. And while the American Medical Association has a zero tolerance policy, it does not expel every offender from its membership. With his experience in both healthcare and law, we requested Dr. Harris discuss this problem in Today’s Christian Doctor.
The Extent of the Problem
The findings are disturbing, to say the least. As physicians, dentists and other healthcare professionals, we should be stunned by the results of this report. The article’s authors investigated medical board reports across the United States in an effort to diagnose a broken system. But what is more disturbing is how the root of the problem doesn’t stop with just sexual misconduct by physicians against their patients. In today’s culture, the intrinsic values underlying the Hippocratic Oath seem to be further and further disregarded. From abortion to physician-assisted suicide, from sexual misconduct to euthanasia, the Hippocratic Oath appears to be taking a backseat in decision-making by the very people who took the oath when they entered healthcare. Is this simply another step in the loss of professionalism in healthcare? Or is this a warning sign of the imminent dangers patients, healthcare professionals and the profession of healthcare as a whole will face if we continue to disregard the foundation upon which our profession was built?
A Few Thoughts at the Beginning
I am a professor of medical ethics and jurisprudence in Oklahoma, teaching senior medical students and residents how to behave well in the real world of medical practice. In addition, I am the Past President of the Oklahoma Board of Medical Licensure, where I regularly saw the failure of physicians to behave well in the real world of medical practice. In the stress of being a healthcare professional day after day, some of us do not live up to who we thought we were when we began our careers so many years ago.
I teach medical ethics from a biblical perspective, since nothing tells us more about the nature of man than the Bible. The Bible has been described as an “Owner’s Service Manual” for all of us. It tells us when to get an oil change and what to do when we break down on the side of the road. From the first word to the last, the Bible is coherent, rational, deeply philosophical and true. I do not cite verse and line when I teach, since there is no need to do so. Life teaches what is in God’s Word; we just have to read it. Universal truth begins in Genesis and is fulfilled in the Gospels. Our faith “informs” all of us about those things we should value and how we should act each moment.
I can teach almost everything to my students, but I cannot teach Christ. “Academic freedom” is not “free” in our secular society. But that is expected. Christ told us, “Do not think that I came to bring peace on the earth…” (Matthew 10:34, NASB). (While we could spend at least an hour discussing where the lines are drawn at universities today, that is not the focus of this article.) The Holy Spirit carries the burden of informing the Christian life. It is the Spirit I rely on when I teach…to teach me. Medical ethics and jurisprudence are man’s law, and as such are a lower form of moral thought than faith. We all need to know and be aware of “innocent traps” in medical licensure, malpractice law and privacy law. My goal with the students and residents is to teach them how to avoid those traps.
What is a Profession…or a Professional
Every major learned skill has a set of written professional standards. In ordinary conversation, a profession is considered a way of earning a living or a skill others are willing to pay for. The word “profession” is commonly used as an equivalent to the word occupation or vocation, or it is described as something done by an expert as opposed to an amateur, student or apprentice. To profess a skill is to claim some special status, ranging from religion to laborer.
In classic literature, the learned professions were law, medicine and theology, reflecting the three major divisions of human existence: body, mind and spirit. At the beginning of the 20th century, a profession referred to one of the three and was not confused with earning a livelihood. Today, anyone claiming to have a unique skill is a professional. Hence, we have a professional golfer or a professional mechanic, as opposed to a weekend hobbyist. The blurring of the lines in the last 100 years is in part due to the newer profession of teaching, as opposed to a master instructing an apprentice, and in part from the denial of classical theology. Darwin, Marx and Freud replaced body, mind and spirit. With this loss of status, the profession of healthcare became one “profession” among many.
“Professional” is an adjective added to a variety of nouns to enrich a thought. Professional skill, professional objectivity, professional accountability and even professional building are but a few ordinary uses of the word. The word professional is often used to create an image or emotion. The phrase “a violation of professional standards” creates a sense of guilt and implies a moral violation, even when discussing a behavior or attitude not considered wrong in other areas of life. I will try to distinguish between moral and ethical violations in what I say about “professionalism,” for they may not be the same.
Humans use three things in trade, and it is these three that set the limits of both medical ethics and jurisprudence. They are money, power and sex. How we use or abuse one of those three areas of human interaction defines both our moral life and personal success. For example, concerning one of these, we have been taught that “the love of money is a root of all sorts of evil…” (1 Timothy 6:10, NASB). How we handle money, power and sex will define our lives in general and specifically our practice of medicine.
As professionals, we have a fiduciary duty toward our patients. The law defines a fiducial duty as one of trust and confidence. The relationship is a voluntary agreement between a person who gives power or property to someone who holds that power or property for the benefit of the other. A physician, as a fiduciary, must be willing to act to his or her own detriment, whenever required, in order to maintain the trust and confidence of the patient. Society values us as professionals only to the extent we honor our fiduciary duty to our patients.
A good friend of mine argues that many professions have practicing members who act in a professional manner, and he includes healthcare in that group of professions. I maintain that healthcare is the only remaining profession that adheres to the values present in the learned professions of the 20th century. It is the one profession that truly values the trust and confidence of those served. Healthcare is a calling for most of its members, far more so than any technical service vocation. I wish I did not know of so many physicians who fail that trust, but my friend is willing to grant those exceptions, since he believes in man’s fallen nature.
Our Failings, Including Boundary Violations
So if healthcare is a calling and we have a fiduciary duty to our patients, where does that lead us? We are led first to our failings. I want to put aside drug addiction and alcoholism among physicians for the moment. While physicians are as equally prone to those problems as non-physicians are, with all the damage drugs and alcohol do, treatment programs for physicians are two to three times more successful than the general population. The observation has been made that physicians are more dedicated to recovery than other groups because of the “calling” they feel to care for others. The loss of that part of their personalities is too great to sustain. They would rather give up alcohol and drugs than their profession.
Boundary violations (inappropriate emotional or physical relationships with patients) are probably as common. In some circumstances, they may be less damaging than alcoholism and drug abuse. However, personal relationships with patients can also be deeply immoral and devastating. The concept of a boundary is simple: the physician holds a power, the keys to the kingdom called healthcare. As long as the physician acts in accordance with the fiduciary duty owed to the patient, there is not a problem. However, emotional or sexual relationships with a patient are considered “predatory,” often using power to gain personal sexual reward.
The current legal definition of a boundary violation includes a variety of behaviors that are not sexual in nature but do involve inappropriate personal relationships. The age and situation of the patient does not matter. Also, male and female healthcare professionals are predators when lines are crossed, not just male physicians, as was the bias in the past. Finally, many times patients seduce physicians for their own gain, often trading sex for opiates or social standing, while pretending to care for the physician. Regardless of the patient’s motive, the physician is judged to be unprofessional, and that physician frequently loses his or her medical license.
A simple prevention is transparency. Do those things you would do for those who depend on you in a manner seen as open and trustworthy. The stunning thing is how many healthcare professionals believe they can keep private what they consider to be private. In the world of healthcare, we live in a fish bowl, not the ocean. Large city life may encourage an illusion of privacy. However, in the small town I live in, everyone knows how my garden is doing each year, let alone how I treat my patients. That is not a bad thing.
Other areas of unprofessional behavior include poor supervision of non-physicians, abusive behavior, improper use of telemedicine and the internet, inadvertent patient privacy violations and alleged poor quality of practice (misdiagnosis and waste of resources come to mind). These areas are all worth discussion, but normally represent a lack of understanding or willful ignorance of what is good practice, not major moral failures. However, they are still ethical violations we all need to consider carefully as part of our personal fiduciary responsibility to others.
Finally, diversion of opiates, blatant fraud and illegal (felonious) acts are simply criminal, not solely within the profession. They are an abuse of power to obtain money, done by countless others in all walks of life, and as such are not unique to healthcare. I would include the fraud of abortion in this area. Abortionists are not (yet) a mainstream part of healthcare; hopefully, that will not change.
Successful Professionalism and the Hippocratic Oath
I recently finished reading a small, somewhat satirical book called Kill as Few Patients as Possible: And 56 Other Essays on How to Be the World’s Best Doctor by Oscar London, MD. It was light reading and a lot of fun, but it had a number of pearls. Based on a career of practicing medicine, Dr. London injected a lot of his own opinions on how to be “the world’s best doctor,” and he is fearless in talking about what he considers important. He does some things I would not, others I would. He is a “successful” physician, a professional within the better meaning of that word, exhibiting professionalism for all to see. I would recommend the book above many other more solemn tomes as an example of what to do rather than what not to do.
Notice that so far I have not mentioned documents commonly consulted for medical ethics and professional behavior. Countless codes of conduct and practice guidelines are available. The American Medical Association’s Code of Ethics has recently been “modernized,” according to the AMA, and every subspecialty and medical society has some statement of ethics. Some are based on the Nuremberg Codes, others on medical-legal concerns. CMDA has an excellent collection of ethical statements based on biblical principles. (To access these statements, please visit www.cmda.org/ethics.) It is not a question of what is available, but what matters.
Of course, the code most commonly recognized by the public is the Hippocratic Oath. It has been made trivial by what is called a summary of the oath, “Above All, Do No Harm.” That statement is not the oath, and it is normally used by those who want to define “harm” for their own purposes. I have seen the term “harm” used to mean not providing medical services the patient demands, providing services at a cost considered excessive, not providing a referral for an elective abortion and even encouraging that we ignore the physician’s moral convictions when they run counter to those of the patient.
In the face of the report from the Atlanta Journal-Constitution and the dearth of adherence to true Hippocratic principles, one can easily say that the Hippocratic Oath as a living document is dead. In fact, I would say it truly died when abortion became legal and when physician-assisted suicide and euthanasia became acceptable. Those “pesky” lines forbidding abortion and euthanasia in the oath made it not politically correct.
So what is professionalism in healthcare?
When you boil it all down, I define it as a fiduciary duty exercised with a dedication to healthcare as a calling. Those two things should sound familiar. After all, the first Great Commandment is to “‘...love the Lord your God with all your heart, and with all your soul, and with all your mind.’ This is the great and foremost commandment. The second is like it, ‘You shall love your neighbor as yourself.’ On these two commandments depend the whole Law and the Prophets” (Matthew 22:37-40, NASB).
We are called and we have a duty. The rest is learning how to live in a complex world, in a complex profession. Simple, isn’t it?
1 Judd A. Doctors & sex abuse. The Atlanta Journal-Constitution. http://doctors.ajc.com/ Accessed December 12, 2016.