The Idea of Professional Ethics

Since I am now preparing to develop a theory of professional medical ethics, it is necessary, to return briefly to a more conceptual discussion. First, it is important to specify my understanding of the nature of a profession, and its relationship to an ethical code. As discussed in chapter 2, sociologists have long been interested in professions, and especially in medicine. Weber, as interpreted by Parsons and the functionalism school of American sociology, has had great influence on our conception of a profession.

Michael Bayles has elaborated and summarized the Weberian view.2 He notes that a profession has three aspects. First, the profession must provide important, if not essential, services. Thus lawyers, teachers, and physicians are seen as playing especially important roles or func-

tions in our society. Second, a profession should have monopoly control over a certain body of information. Again, lawyers' knowledge of legal matters and doctors' knowledge of medicine are the best exam-pies. The lay person would not claim to understand to any great extent the knowledge of the physician. Moreover, professions maintain this monopoly by controlling access to it; they accredit the schools where students learn the trade. This highlights the third aspect of professions for Bayles: there is no public control over them. Society expects the professions to police themselves,

What Bayles does not discuss at the time he defines the professions (although it is the topic of his book) is that they all possess a self-assumed ethical code. Society. grants such extraordinary authority to professions because society trusts in the professions' adherence to codes. These codes, and the moral intent they reflect, are meant to regulate the relations between professions and the public, especially the client.

Bayles characterizes five models of relations between clients and professionals. They include agency, contract, friendship, paternalism, and fiduciary models. The agency and contract models are similar to what I have called the formal relations between citizens in the liberal state. Both sets of relations involve highly formalized expectations that bind the parties overtly. The friendship and paternalism models draw closer to the nature of medical ethics found in this country before 1975. The physician acted as a friend, but was prepared to act paternalistically and overlook the patient's autonomy, whereas the fiduciary relationship involves trust without usurpation of autonomy. The professional in a fiduciary relationship acts on behalf of the patient but respects the patient's rights. It is this kind of relationship that I would argue doctors should advocate as the norm of medical ethics.

Others would say that I am mistaken even before I start, on the premise that the liberal state itself, not physicians, should dictate the nature of professional ethics. Veatch, for instance, believes that any efforts by physicians to dictate the nature of medical ethics will lead to usurpation of patient rights.3 Bayles takes the same position. He argues that professions are meant to serve society, and thus society should develop a set of expectations for professions.4 Many observers have called for a decrease in the power of doctors to monopolize the means of entry into the profession. The lack of public trust in the profession and the attendant decrease in prestige have been noted by

many sociologists.5 That trust and prestige are now sorely missed by many physicians, who often have failed to see their own part in the loss.

While acknowledging the causes of the "deprofessionalization of medicine" and the good intentions of those who advocate further erosion of the professional model and its monopolization of power, I would like to offer a model of an ethical medical profession that defines for itself the nature of ethical practice. I do not see medical ethics as a mere pledge or a matter of group loyalty.6 Nor do I see medical ethics as the consensus that the profession develops.

Rather, I understand professional ethics in medicine as an evolving set of principles. Physicians participate in this evolution, as do all members of the liberal state. The primary principles in medical ethics are the special needs of the patient and the commitment physicians have to the patient's well-being. With this commitment, there must be a capacity for altruistic behavior beyond that which the liberal state can expect of citizens generally. In addition, however, there must be respect for the public morality of liberalism, especially respect for patients' rights, their liberty, the integrity of the law and the sense of justice it reflects, and the pure procedural justice of the market. This sense of medical ethics calls for debate within the profession and active efforts by its members to make rational arguments that convince their peers of the necessity of certain ethical duties.

For example, many people are quite concerned about the problem of physicians' refusals to care for patients infected with the human immunodeficiency virus (HIV).7 One could argue that health care professionals have a duty to treat all patients, including those with HIV infection, despite personal risk. Some physicians have stated unequivocally that any theory of medical ethics requires that physicians provide care for AIDS patients.8 Indeed, both the American Medical Association and the American College of Physicians maintain that physicians are ethically required to care for those with HIV-related illnesses.

Do these assertions by some physicians and organizations of physicians necessarily mean that there is an ethical obligation for physicians to care for people with HIV-related disease? The answer is no. Individual physicians' opinions about ethical duties are helpful as a form of encouragement, but they carry no more intellectual force than do opinions that doctors have no ethical responsibilities. Professional societies' ethical guidelines arc at best codifications of a professional

censensus. They do not themselves create obligations of an ethical nature. Indeed, many physicians deny they have any duty. to care for AIDS patients.

To understand the scope of the debate over the duty to treat every patient, one must understand the fluid nature of medical ethics and the difference between individual and professional ethical obligations. The critical elements of an individual's ethical obligations are that the obligations are self-assumed and that they derive from a set of rational principles. Professional ethical obligations are those that exist because the rational principles that give rise to them are closely related to the enterprise of the profession. Professional ethical obligations are related to individual ethical obligations in that both are self-assumed and both involve reasoning from principles to actions.

Professional ethical obligations are meant to bind the members of the profession. Of course, there is a possibility of disagreement within the profession about those obligations. Anyone can assert that members of a profession should recognize a certain ethical obligation. Someone else may assert that the ethical obligation does not follow rationally from principles of ethical action and thus should not be recognized. In this case, the second individual asserts that the profession will not recognize the obligation asserted by the first because the obligation is not reasonable. Thus any single assertion about professional ethical obligations does not mean there is an accord about those obligations.

Indeed, there is a dynamic relationship between individual assertions about professional ethics and an accord about professional ethical obligations. This dynamic relationship creates the fluid nature of medical ethics. Individuals may put forth their own interpretations about professional obligations. They will try to convince other members of the profession that they are correct in their choice of principles, and in their reasoning from those principles to action. Others will counter these assertions and disagree both about principles and the reasoning from those principles to action. This lively debate can and often does lead to an accord about ethical obligations.

Of course, not all ethical obligations are the subject of controversy. The paradigm of the debate can also explain ethical obligations upon which there is agreement. For example, physicians have argued that one principle is to do no harm to their patients. Understanding that sick patients are especially vulnerable both emotionally and physically, and that the patient's sharing of intimate life details is necessary for

optimal therapy, doctors recognize an ethical obligation not to engage in sexual relations with patients. Since most physicians agree with these principles and reasoning, there is professional accord about this obligation.

I call these ethical obligations upon which there is professional accord or consensus "mature professional ethics." The public can and does rely on these obligations. They are the resolutions, at least in a theoretical sense, of debate. Issues that still provoke lively debate are not yet mature professional ethics. In addition, professional ethical propositions once thought to be mature can come under new scrutiny, the subject of active reflection.

Indeed, I have argued that the mature (in the sense of being settled, not particularly well-reasoned) professional ethics of the early 1970s has come under intense scrutiny over the past ten or fifteen years. As we have seen, there are many reasons for this. Foremost, the incredible costs of health care awakened society to the need for change in our medical system. The marketplace has as a result become a more dominant force in medical care. But as the medical profession has been drawn closer to the values of the liberal economy, there has been less and less agreement possible about the fundamental principles that should guide decisions about right and wrong. This is perhaps the great weakness of the liberal state. Liberalism, which celebrates individual choice, tends to disrupt the consensus that leads to mature professional ethics. The social morality of our society is incredibly diverse. For these reasons, many moral philosophers have begun to focus on contextual decisions, and to forego efforts to identify fundamental concepts of duty and obligation.

Where does this leave us with regard to the ethical obligation to treat AIDS patients? We cannot easily re-create a time in which there was less pluralism in medicine. Indeed, there are many reasons to prefer the changing social context of medicine and physician's freedom to partake in, and be guided by, the overlapping consensus that defines the liberal state. However, as we shall see in a later discussion, medicine imbued only with the marketplace concepts and the principles of liberalism may prove to be quite hostile to the idea of an ethical obligation to treat all patients, including those with HIV-related disease. At this point, however, we can only say that the dynamic process is ongoing, and that there is still disagreement within the profession about a duty to treat all patients.

I will return to this issue later in the book. Indeed, most of the

remaining chapters will present a series of arguments about particular subjects I would like to submit to the ongoing medical ethics debate. I will be arguing that a new medical ethics should embrace certain propositions, given that medical ethics must accept the liberal public morality, yet move beyond that morality in the direction of altruism. Before delving into these specific arguments, however, I will indicate in more detail the broader role I see for medical ethics in the liberal state.