Ethics, Physicians, and Public Policy Samuel O. Thier, MD lthough Al Jonsen has already declared here that medical ethics are ended, I would like to reflect, nevertheless, on some of the discussion I heard. I will infuse a little cynicism into the philosophical discussion. There are a couple of quotations that will help us in our discussion. One is from Disraeli who said, "Finality is not the language of politics, n or policy, which is the practice of politics. That means there are no final policies; we are always somewhere along the way. One of the critical issues is to figure out where we are along the way and in what direction we are heading. In the policy arena the first option chosen is usually to progress by incremental steps, which may get you any place if you don't know where you are going. The first things you need from your philosophical discussions are a framework and some boundaries to the issues so that you will be able to design a rational system, and then translate it into actual practice. The second quotation is from a fellow named Cornford. He was a don at Cambridge and wrote a little book called Microcosmographia Academia in which he says, "You think, do you not, that you have only to present a rational argument and that people will see your logic and flock to it. It's just that belief that makes you so unpleasant. As I listened to your attempts to design policy that would be uniformly acceptable and encompass all of your ideals, I was thinking that you could count on the fact that no matter how bizarre any suggestion, 10 or 20 percent of the people would support it. And no matter how totally rational and in the common interest the policy was, 10 or 20 percent would oppose it. You cannot expect to formulate a policy that will convince all. Then it becomes important to know where the 10 or 20 percent in opposition are. If they are in controlling positions and ideologically committed, the rationality of your argument will be disregarded. Perhaps you can find where the opponents are and make strategies to convert your rational arguments into reality. But you must also accept that there are certain strategies that are not workable at the present time in the present circumstance, and you should not exhaust yourself pursuing those strategies. I would love to believe that the AARP had an epiphany and suddenly saw the importance of intergenerational cooperation, but I really believe that they saw the handwriting on the wall, in terms of diminished congressional support after the repeal of the catastrophic illness bill and the fact that Medicare is the target of most deficit reduction discussions, and they thought they had better build a broader constituency.

A

N

Dr Thier is President of Brandeis University in Waltham, Massachusetts

JAGS 40:417-420, 1992 © 1992 by the American Geriatrics Society

Let me go back to the topic at hand which is physicians' ethics, the principles that guide their behavior. The behavior that we'd like to have guided is the behavior of any learned profession. A learned profession has four characteristics. It is a keeper of a body of knowledge, a component of which comes from experience, and it is responsible for advancing that knowledge and passing it on to the next generation. It has a code of ethics which includes at least a component of service to others. It sets and enforces its own standards. And it values performance above reward. That definition sadly enough does not come from any of the medical writings. That comes from Justice Brandeis. Nonetheless, it fits very nicely. Let me then go through the various components. Knowledge is the information with which we are entrusted by society and that we work to advance through inquiry. It requires that the activity be conducted truthfully and openly. I'll begin with a series of dilemmas because rather than trying to solve every issue that faces us, I view the discussion of ethics as a way of approximating what our responses might be. For example, what do we do with proprietary information in the face of a need for truthfulness and openness? How do we deal with the fact that there is a large amount of research going on now between industry and universities in which the university is told to hold proprietary information secret? A very difficult question. Do you not do the research? Do you do it in a way that allows openness, but only after a certain period of time? Would we have the kind of new drug and biologic development in this country if we didn't have protection of proprietary information and investment on that basis? Looking at other nations that don't have that protection, do they do as well? If they don't, what are we paying for openness? The right answers are not obvious, but it is important to explore because the first thing that our medical students see in their education is the faculty of the medical school challenged by these dilemmas. Students see this very clearly. And faculty play this out as they mentor their students and their graduate students. How they handle these dilemmas is how they communicate what reasonable behavior is. What are we going to do now with large scale clinical studies, which are more and more often called for? How are we going to deal with the fact that we will require progressively more complex combinations of expertise to complete a single study? We have an ideal. The ideal is that, when there are four authors of a paper, everybody on the paper knows everything that is in the paper and everything about it, but that is not true. That isn't realistic. That's not the way the world operates. We've chosen at the moment to say that these people who are authors are responsible, even if one

0002-8614/92/$3.50

418

THIER

author is using a technique with which the others are totally unfamiliar though it is critical to the paper. If that one author misbehaves scientifically, all are punished. Is it a sound ethical position to punish somebody because they misjudged a colleague's honesty? Are we setting standards that are unrealistic and therefore forcing people to behave in ways that are not open and honest? How do we deal with this changing need to interpret information? Who's responsible for all of this? What is the responsibility of the individual? It seems to me the individual is primarily responsible in any research endeavor. The institution is responsible, and the funder is responsible for the resources, and the news media are responsible for the way in which they communicate issues, and the journals are responsible but they can't be police. So, we now have an explosion of information, an increasing complexity of the organization of research, a change in the entire climate in which research is conducted and in which students are taught. I do not know the specific guidelines for behavior, but I know approximations of that behavior. Testing the approximation now becomes important. In research we also have had to address the issue of competing beliefs, for example those concerning animal research. When competing beliefs are as firmly held as those on abortion or fetal research, rational argument may not get you to a solution. The real questions are, what compromise position can be reached and by what process. My sense is that, in time, more and more of these complex issues of differing beliefs will drive policy. What is the responsibility of the profession to inform those policy decisions? We can see the problem in the research arena, but we will see it more strikingly when we begin to talk about modifying the way in which we deliver care. I mentioned at the beginning that we are entrusted with knowledge. We don't own the knowledge in medicine. We didn't buy it. We didn't, in most cases, create it. We use it, but we use it in trust klr society. We're about to come up against a situation in which that knowledge is going to be much more far reaching than it has ever been before. How will we use it? How will we interact with patients on issues of confidentiality? For example, with the capacity to sequence the genome and find products of genetic disorders, we will be able to determine susceptibility and resistance to disease. We will have the capacity to predict clinical problems with a precision we've never had before. How do we deal with it when we have that capacity to predict but don't have the capacity to prevent or treat? How is the information communicated? Who protects that information? These are dilemmas that need to be debated. The other point I wanted to make about knowledge is that, if we are entrusted with it, it isn't clear how we can withhold it. By knowledge I mean all of the skills with which we practice. Is it sufficient to withhold skills on the basis of economics? Is it sufficient to do so on any basis-age, financing, ability to get to the source of the care, the physician's wish or non-wish to provide the service? This is the area in which we are most likely to run into difficulties. If we control infer-

JAGS-APRIL 1992-VOL. 40, NO.4

mation, which we control only because we are trustees, then how do we withhold it? I don't think that we can. Then, the question is what do we do with it? If we use that information both to treat patients and consume resources, the decisions that we make affect the capacity of the rest of the system to operate. When we have consumed enough resources we have another opportunity that is forgone. We have spent a lot of time talking about how to slice the rationing pie. We have two ways of doing it. One is to cut people out of the system. That's the way we have traditionally done it. The other way is to cut services out of the system, which was the initial attempt in the Oregon experiment. In both cases we've talked about what is useful that we will not provide. That is the level of the debate. As you heard from Safar (not included in this publication), there is another way of framing the debate, which is how to forgo activities that are not useful. It seems to me the major logical sequence is that the critical action is to halt the use of resources that are not useful or may in fact even be harmful. That brings us to the capacity to evaluate practice. We are talking about the entire emerging field of outcomes research, effectiveness inquiry, and quality assurance. It leads to practice guidelines, which I describe as a Rorschach test for the health professions. When you say practice guidelines, the physicians think that either they're being dictated to or that they're being given help in how they practice. The purchasers of services think that now they are going to have information upon which they can generate a benefits package. The payers think that they now have a basis on which to exclude reimbursement. People wonder whether guidelines would be a legal defense against malpractice. It won't help to address all of these views at once. It is critical to recognize that the generation of practice guidelines is a process which, in order to be truly useful, will play out over 5, 10, or 15 years. We must not encourage the sense that we can provide, in the next year or two, information upon which the system can be designed and benefits selected; we can't. The Oregon plan ran aground on just that inability. It is important to be open and honest and tell people what the limitations are. Congress doesn't want to hear this. That is the way it works, particularly if a guideline has to do with comparative choices in which there are five and six options in a clinical circumstances. There's no question that the practice guidelines will turn out to be windows in which judgments will be made rather than rigidly defined pathways. There is not going to be a cookbook to dictate what physicians can and cannot do. I don't see anything to suggest that is the way it is evolving. If we have the capacity to make sound choices, what would happen to the relationship between physicians and patients? Right now, at least until jensen's talk, we had a view of the physician and patient in a very personal interaction based on trust. The physician acted as the primary agent for the patient, not necessarily acting on the patient, but acting with the patient. That required

JAGS-APRIL 1992-VOL. 40, NO.4

a sense that when the two met, the patient’s interest was primarily at stake. We have two competing cultures we have to put on the table, We have a public health culture and we have a medical culture, and they aren‘t the same. Though they overlap, they are not congruent, and they will never be totally congruent. When we try to act as though they are, we get ourselves into serious difficulties. For example, it may be very important to know that in a population of 10,000 people a certain activity will benefit 80 of them and will have harmful effects on three of them. You may calculateprobabilities, costs, and benefits. But when the patient is confronting a physician, s/he is not asking probabilities but is asking possibilities. Harvey Cohen pointed out that sometimes those possibilities are of such remote statistical likelihood that we would think them not sensible. But, when they are the only options the patient has we are going to have a lot of trouble if we don’t place those patient expectations on the table and let them compete. This is where the public health and medical cultures collide. That will be heightened in the next few years as more and more physicians become employees, either in partnerships with other physicians, of IPAs, of HMOs, or of institutions. The patient will know that group, HMO, or institution will do best if it changes physician behavior in a direction that benefits the economic viability and reputation of that institution. How will patients know in confronting physicians, whether the physicians are acting in the patient’s interest or in the interest of the physician’s employer, and how are those interests merged into a decision process? Lawyers learned long ago that you can‘t be advocate and judge in the same case. It seems silly to them that the matter would even be raised. Yet, in a lot of the discussion about restricting resources, we suggest the physicians will simultaneously be both the advocate for the patient and the judge of use of resources. I don’t think that is possible; those decisions need to be dissociated. In the category of limiting resources, I do not believe that physicians need to be making those decisions alone. How can you tell when things are going to change? Things are going to change when the middle class begins to become restless. We are beginning to see take-backs in employer-supported health benefit plans, and the potential disintegration of the present health insurance system. The middle class is getting anxious. There is little chance that you will get a major inclusion of uninsured individualsin the system at the same time that the vast majority of the population sees their position within the system threatened. You will likely see the middle class becoming more and more a part of the debate over the next few years, and it will become very important to understand them as we design changes in our health care system. We come then to the actual practice of medicine. It is in our valuing of performance above reward that the public has lost most patience with the profession. There is a strong sense that we don’t hold to this at all. There is example after example of an artificial kind of chargesetting that is driving up costs. This is producing a

ETHICS, PHYSICIANS, A N D PUBLIC POLICY

419

tremendous loss of trust in the profession. We can defend charges as a business decision. But be careful, because if we begin to defend a business decision we will end up being treated as a business. I defined for you the four components of a learned profession. It is those components that, in my mind, establish the social contract between the profession and society. You don’t accept responsibility for two or three out of the four. You have to accept all to the satisfaction of society, and we are clearly forfeiting on the valuing of performance above reward. If you listen to our internal debates, they don’t start with what’s more important for health care or the patient. Anybody who hears those debates will be as concerned for the social contract as I am. You were brought here by the American Geriatrics Society, and I want to point out a couple of historical facts that were triggered in my memory by Chris Cassell’s discussion yesterday. I can go back and trace for you the history of hospitals and of reimbursement for health care in this country. In each case I can document that from the very start we have had a concept of those worthy and unworthy of care. Ever since there were almshouses, there is evidence that we excluded the ”unworthy“(eg, unwed mothers, alcoholics, and syphilitics) from hospitals. We put in a system that favors acute, reversible medical problems that, theoretically, could be ameliorated. Then, we built a reimbursement system that reinforced that care system. I suggest that we continue to have that sense of worthy/unworthy. How then did we get Medicare? The Medicare history is fascinating in that it was proposed forever, going back to the thirties and even before. It came up in almost every Congress. And it was voted down by every Congress. Then, it finally came forth in 1965 as the only piece of legislation written entirely by its opponents, and it reads that way. There were two reasons that Medicare included the elderly. At that time, the elderly could be shown to be at greatest risk of incurring catastrophic health costs. This meant hospitalization. And, they were forced to retire at age 65. It was not an accident that Medicare started at age 65. The elderly were not ‘unworthy” people who would not work to support their health care because that option was not available. After we put in Medicare as an entitlement, we turned around and slapped the poor by making Medicaid a welfare program instead of a health care program. We have sustained that mentality to this day. It is my strong sense that when we begin the debate about national health insurance, at least two or three things will play out. One, we will not have an allprivate system. There is no structure in our private system to provide adequately for the indigent. We will not have an all-public system, at least not for the foreseeable future because it is idealogically unacceptable at the moment in the United States. In addition, there is the strong investment of the insurance industry. So, this country will have some mix of public/ private health care coverage. We can have a system that makes sure that everybody is covered in some

420

THIER

way, but it will not be an integrated system, and the costs may not be easily controlled. The real issue is going to be economic. But, we will also have this worthy/unworthy history to be addressed more openly before we can enter into broad system reform. We are facing 5 or 6 years of experiments that will be carried out at the state level. I do not see the federal government being a major player. Bills will be introduced this year. They will not go forward. Health system reform may be put on the agenda for the

]AGS-APRIL 1992-VOL. 40, NO. 4

presidential election. We didn’t get that far last time. But, the President has yet to accept that health care is an issue, and he is basically shifting the costs to the states. After the states experiment we will have some choices. Later in this decade we’ll move to a more national systemic approach. I come back now to the realities-what is possible during the next 3 to 5 years, and what is desirable over a decade. The approaches to these two time periods may not lead to the same solutions, but they ought not exclude each other.

Ethics, physicians, and public policy.

Ethics, Physicians, and Public Policy Samuel O. Thier, MD lthough Al Jonsen has already declared here that medical ethics are ended, I would like to r...
444KB Sizes 0 Downloads 0 Views