Academic Psychiatry 28:164-167, September 2004
© 2004 Academic Psychiatry
Commentary: Legalism, Postmodernism, and the Vicissitudes of Teaching Ethics
Paul S. Appelbaum, M.D.
Dr. Appelbaum is the Arnold Frank Zeleznik Distinguished Professor and Chair, Department of Psychiatry, University of Massachusetts Medical School. Address correspondence to Department of Psychiatry, University of Massachusetts Medical School, Worcester, MA 01655; appelbap{at}ummhc.org (E-mail).
Even in this era of evidence-based medicine, sometimes there is nothing like seeing something with your own eyes to drive home a point. I have been teaching ethics to residents, faculty members, and practicing psychiatrists for roughly 25 years. But never have I focused so clearly on the pitfalls of the task as I did at the most recent annual meeting of the American Psychiatric Association (APA). Let me share the experience with you.
I had been asked to lead a discussion group of 25 psychiatrists on "Ethics in Psychiatric Practice." My plan was to solicit ethical dilemmas from the practices of the participants themselves and to engage the group in discussion of the principles involved and the options for resolving the situations. As the room filled, I experienced the usual anxieties of the leader of such a session: What if I ended up with 20 social phobics and five schizoid personalities, all waiting for someone else to speak? But, as it turned out, I need not have worried.
Seated right in front of me was an older psychiatrist whose hand shot up the moment I asked for someone to present the first case. In a voice laden with emotion, he described a situation he had faced—apparently many years ago—involving the question of whether it had been justified for him to have breached a patient's confidentiality to protect a third party. If anything was clear from the presentation, it was that this psychiatrist had been tortured for many years by what he had done, never having been sure what the right course of action really was. After his moving account, I turned to the group and asked how they might go about thinking through the ethical dilemma. Seemingly without hesitation, a woman's voice boomed out from the side of the room: "I would call the risk manager for my insurance program."
Assuming for the moment that the psychiatrist's risk manager does not have an advanced degree in ethics, the response suggests a profound confusion that I have often seen when ethics are discussed. For this psychiatrist, ethics and law were indistinguishable. The best way to manage an ethical dilemma was to identify what the law allowed or required her to do and to act accordingly. Moreover, by consulting a risk manager rather than an attorney, she guaranteed herself the most conservative interpretation possible of the legal situation, one aimed at maximizing her protection from liability above all other considerations. If this were all there were to ethics—that is, if it were synonymous with law—we could turn the time we spend teaching ethics over to the attorneys and risk managers. Anything we might have to say about ethical principles would be irrelevant. Yet, it seems to me that more often than not discussions of ethics drift (or as in this case are propelled) into considerations of law.
Where is the error here? Law and ethics are, of course, related. A legal rule typically embodies one possible resolution of the ethical tensions inherent in a situation. That resolution may be accomplished by vote of a legislature, decree of a court, or issuance of a regulation. It reflects how one decision maker or group of decision makers view the most desirable option—taking into account ethical and other considerations—at a given point in time. As such, law cannot and ought not be ignored when ethics are under discussion. And, of course, when practical action is anticipated, we all want to consider the law in deciding what to do. But to say that a legal rule reflects a particular resolution of an ethical conflict is not to say that those who crafted the rule succeeded in identifying the most satisfying approach to the problem, or that the situation has not changed so drastically since the rule was formulated that it requires reconsideration.
Perhaps an example will illustrate the point. When the AIDS epidemic first came to social consciousness, there was a great deal of discussion about physicians' obligations to inform the sexual partners of HIV positive patients of the risks they faced from unprotected sex (1,2). The question generally arose when patients who had tested positive for the virus made clear that they had no intention of either engaging in "safe sex" or of informing their partners of their HIV status. Among the principles considered in the ethical analysis of the dilemma were the obligation of fidelity to the patients' interests, which arguably required protecting the confidential character of their medical information, and the seemingly countervailing principles of beneficence and nonmaleficence, which appeared to urge that innocent and unaware sexual partners be protected from a disease that then represented near-certain death. From a utilitarian perspective, it was suggested that the greater good of saving the lives of identified persons at risk trumped the harm that patients might endure when their status was disclosed. In the alternative, it was argued that disclosure would be counterproductive, since patients who knew that their test status would not be kept private would not come for testing in the first place—thereby short-circuiting education-based prevention programs.
Over time, medical organizations hammered out positions that represented their best efforts to resolve these competing considerations. The APA's position statement, for example, accepted as a reasonable alternative the possibility of nonconsensual disclosure when all efforts to persuade the patient to disclose his or her status failed (3). The American Medical Association (AMA) went even further, holding that physicians were required in such situations to disclose the patient's HIV status to prevent harm to innocent victims (4). But legislatures did not always agree. In Massachusetts, for example, a statute was adopted prohibiting the disclosure of patients' HIV status in any situation whatsoever, without patients' written consent (5). There was clearly no one "right" answer to this difficult situation.
To know the law, however, is the beginning and not the end of ethical analysis for a physician faced with an HIV positive patient who is refusing to reveal his or her status to an at-risk partner. The APA and AMA position statements suggest that legislatures that precluded disclosure in such cases may not have struck the right ethical balance. Although a physician runs a serious risk by violating the law, when a life may be at stake—as here—such behavior is an option for those who are willing to face the possible legal consequences. For a physician to know what to do requires a careful ethical analysis, not merely a call to his or her insurance program's risk manager. And if this is true for a situation in which statutory or case law directives may exist, it is all the more true when the law is ambiguous or nonexistent with regard to the problem at hand. Law and ethics are not the same.
After talking about this distinction, we moved on in the discussion session to consider a variety of other cases. With time left for just one more issue, we embarked on a discussion that, perhaps fortuitously, exemplified a second major misconception about ethics. The question raised by one of the participants dealt with the thorny issue of psychiatrists' accepting favors from pharmaceutical representatives, who were obviously interested in increasing the physicians' prescription of their products. Here was a question that the law has not yet answered (though some rules appear to be in the process of evolving and more regulation seems likely). As we talked about the principle involved—concern that accepting gifts would undermine psychiatrists' fidelity to their patients' interests—the participants suggested various places where they would draw the line. Some felt comfortable accepting items of trivial value, in the belief that these presents would not affect their prescribing practices. Others would take gifts that related directly to improving their practices, for example, accepting textbooks or free continuing medical education programs. Still others limited themselves to taking free medication samples, though they recognized that the representatives' goal in distributing them was to get patients started on medications that they would be likely to continue (perhaps at the expense of Medicaid or some other third-party payer) once the samples ran out. By the end of the discussion, reflecting the situation in our field as a whole, it was clear that we had not achieved consensus on where the line should be drawn.
The psychiatrist whose comment got me thinking about the confusion between ethics and law had since left the room—perhaps to call her risk manager to ask about something I had said. But next to the place where she had been seated was a psychiatrist who introduced herself as coming from overseas and who expressed skepticism about the value of all this talk of ethics. "He says he'd do one thing, she talks about doing something else, and you would do something different again. All ethics amounts to is your opinion versus mine. Why bother pretending that it's anything more?"
The challenge posed by this international colleague—of course with three minutes left on the clock—was a serious one, and I have heard it echoed frequently in seminars and case conferences. Why bother with ethics, indeed, if all it boils down to is: "You do what you think is right, and I'll do what I think is right"? The position goes by the name ethical relativism, and in this postmodern world, it is voiced widely by people who believe that no independent basis exists to validate any particular ethical conclusion. All we are left with, in this view, is the ultimate subjectivity of each person's intuitive response to any situation.
To be sure, there's a grain of truth in the assertion. Clearly, as was demonstrated by the discussion we had just completed, there are times when ethical analysis identifies several possible courses of action, without providing a conclusive argument for any one. But is it fair to say that such discussions leave us with no guidance whatsoever? I would suggest not. After all, the participants in this group were quickly able to identify the core principle at issue: remaining true to patients' interests in their prescribing practices and not letting themselves be swayed in their choice of medications by pharmaceutical enticements. What they differed over was not so much the ethical principle, as how it might best be implemented. Some people feared that accepting any benefits from pharmaceutical companies threatened to alter their behavior, even if the effect were entirely unconscious. They argued that this was the very reason why the companies, among the most sophisticated of marketers, target physicians as they do. Other participants thought they could resist the influence exerted as a consequence of the small favors they accepted. But wherever they drew the line, no one suggested that it was legitimate to choose medications for one's patients because of a sense of indebtedness to a pharmaceutical company or in the hope of receiving greater largesse in the future.
The nature of ethical analysis—requiring, as it does, the balancing of principles in conflict, or the estimation of probable outcomes under conditions of uncertainty—means that it will often not result in complete agreement about the best course of action. Even in those cases, however, there will usually be some degree of consensus regarding the relevant principles and perhaps regarding a set of behaviors that are inappropriate by any measure. Narrowing the range of options is the first, and often a crucial, step toward selecting a resolution to the situation. And even if several options remain, it is difficult to believe that the task of selecting among them will not be made somewhat more informed by the careful consideration of the issues that the best ethical analyses provide.
Two papers in this issue underscore the importance of ethics education in the training of residents and medical students (6, 7). As we undertake that task, though, we must be alert to its pitfalls, including the misconceptions that our efforts may engender. My experience in the discussion group at the APA meeting underscored two of those misconceptions for me. Whatever substantive content we include in ethics curricula, we must also convey that law and ethics are overlapping, but nonhomologous realms. Legal opinion does not preempt ethical discussion. Moreover, engaging in ethical discourse is not quite the same as offering an opinion about next week's weather. All opinions are not equal; some arguments are more finely crafted than others. And even if we cannot identify the one "right" answer, we will have narrowed the range of possibilities and set the stage for the difficult task of deciding what to do.
REFERENCES
- Freedman B: Violating confidentiality to warn of a risk of HIV infection: ethical work in progress. Theoretical Medicine 12:309–323, 1991[Medline]
- Bayer R, Toomey KE: HIV prevention and the two faces of partner notification. American Journal of Public Health 82:1158–1164, 1992[Abstract/Free Full Text]
- American Psychiatry Association: AIDS policy: confidentiality and disclosure. Psychiatric News, January 15, 1988, p. 27
- Council on Ethical and Judicial Affairs, American Medical Association: Ethical issues involved in the growing AIDS crisis. Journal of the American Association 259:1360–1361, 1988
- Massachusetts General Laws, Chapter 111, Section 70F
- Roberts LW, Green Hammond K., Geppert C, et al.: The positive role of professionalism and ethics training in medical education: a comparison of medical student and resident perspectives. Acad Psychiatry 28:170–182, 2004[Abstract/Free Full Text]
- Hoop J.: Hidden ethical dilemmas in psychiatric residency training: the psychiatry resident as dual agent. Acad Psychiatry 28:183–189, 2004[Abstract/Free Full Text]
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