Commentary on the Code of Medical Ethics and Deontology

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Chapter I: Definition and scope

As is customary in legal and ethical codes, the first chapter of the Code of Medical Ethics and Deontology (hereafter referred to as the Code) deals with some preliminary issues: it defines the concept of medical ethics as used in the Code, determines the scope of application of its rules, states the nature and purpose of the collegial discipline , and declares, finally, that the care of professional ethics is one of the primary interests of the World Medical Association (WTO).

The subject of this Chapter I is mixed, legal and ethical, as it deals with questions on the borderline between medical law and medical ethics. One of these, for example, concerns whether it is legitimate to regulate the professional conduct of all doctors by means of a Code, as there is no shortage of those who question both the compulsory nature of membership of the WTO and the legitimacy and universal and binding nature of codified deontology.

The study of this Chapter will help to better understand the foundations on which the Code is built.

article 1. Medical ethics is the set of ethical principles and rules that should inspire and guide the professional conduct of physicians.

Three issues are worth commenting on at purpose of this article. The first concerns what is to be understood by medical ethics in the context of the Code. The second concerns the nature of its rules, the substance of which they are made: whether they are advice or precepts, whether they are always and without exception binding on all doctors, whether they are of the same or of different rank. The third question is whether the Code contains the totality of the rules of professional conduct to be observed by the physician.

1. What is to be understood by medical ethics in the context of this Code?

For some, the term deontology does not seem to be very well chosen, because it is ambiguous: it has, apart from its professional meaning, a philosophical meaning. If taken in the latter sense, the WTO could be understood as imposing on its members a particular philosophical opinion among the many opinions on the nature and structure of ethics that exist in today's pluralistic world. And such an imposition does not seem to be in tune with the respect due to the freedom staff of the physician, nor, ultimately, to that of the patients that physicians have to treat.

In effect: certain doctrinal currents are called deontological in Philosophy moral which coincide in maintaining that the moral quality, good or bad, of human actions arises from their concordance with certain predetermined principles, prior to those actions, and independent of the effects and consequences that they have. These predetermined and determining principles of good conduct are moral duties. According to deontological theory, what is proper to moral life is to do one's duty, to do one's obligations, because only by doing what one ought to do can one lead a morally upright existence.

The deontological currents are opposed to those of subject consequentialist currents, which determine the morality or immorality of actions by the effects they produce, by the advantages or harm they derive from them. For the consequentialist, good actions are those that result in more benefits and greater advantages (well-being, pleasure, utility, power) for more people, while actions that cause harm or limit the creation and diffusion of these benefits and advantages are morally wrong.

It happens, moreover, that deontology is not a univocal term in Philosophy : there is not one but several deontological theories, which differ from each other on a crucial point: who establishes moral duties, how one can determine them in each case. Some deontologists hold that moral rules are those established by those in authority and must therefore be followed always and without exception. For other deontologists, the moral rule is not given by an external authority: it is precisely one's own conscience which, in every status, discovers and establishes this rule, because only when the conscience sets a moral guideline and the actions are adapted to it, only then is man loyal to himself and fulfils what is his duty.

Obviously, the Code, although it is called the Code of Ethics, is not the product of any deontological school, nor does it consistently follow any philosophical trend. It is true that many of its rules have a deontological appearance, in that they set out for physicians the conduct they should follow in certain situations. But rather than commanding, the Code prefers to recommend and advise: it hopes that physicians will accept and adopt the rules because they are reasonable and proper to their professional vocation; it expects them to impose them on themselves as a duty that not only commits them, but also guarantees the human and technical quality of their services. On the other hand, many of the articles of the Code have strong consequentialist overtones, urging the physician to seek the greatest good for the patient and for the social community, and insisting that the measure of the physician's moral quality and the goal of his or her actions is to obtain the maximum effectiveness of his or her professional work .

In reality, historically and doctrinally, the Code is the result of a long task of selecting norms and criteria with which doctors have wanted and continue to want to self-regulate the internship of the profession. Although the history and the Degree of ethical self-regulation of the medical profession differ from one country to another, it can be said that the deontological codification was born and has been growing as result of a social pact: society has given to the medical profession the exclusive power to grant, to those who meet the due qualifications, the licence to practise medicine, on condition that the Colleges themselves establish the ethical rules for the competent and correct practice of the profession. In a way, a code of medical ethics is a guide of professional conduct that contains the ethical commitments that doctors publicly undertake to guarantee society an adequate level of quality in their professional services. From this mutual pact and exchange of concessions and guarantees between society and the professional body derives, on the one hand, the public nature of the Code and the system of professional discipline that is annexed to it, and, on the other, the conscientious recognition by each doctor that his or her professional freedom and autonomy must move within the ethical coordinates established by the Code. This legitimises the Code. It is from this social commitment that codified deontology is born.

2. The rules and recommendations contained in the Code are not all of the same rank and character. Some are the deontological version of a legal precept and are therefore binding for two reasons: legal and ethical. All the other rules are imposed at degree scroll collegial, i.e. they emanate from the profession itself. Some of them impose a specific conduct under penalty of disciplinary sanction. The remaining ones give advice on subject professional, in order to encourage the physician to behave in a highly ethical manner; failure to follow them does not result in penalisation or censure.

There are relatively few rules with a dual legal and deontological character because, in fact, as the rules of professional conduct have become more formalised in modern societies, there has been a progressive separation between legality and morality. It is natural that certain aspects of doctors' activities, those that go beyond the purely private sphere and thus have social and public effects (even if they sometimes involve social groups of only two people, the patient and the doctor), have been regulated by laws and provisions in the field of Civil Law, criminal or administrative law. Taken together, these legal rules form medical law, the protection of which is entrusted to the ordinary courts of law. The main purpose of law, including medical law, is to regulate the mere peaceful coexistence of citizens: only indirectly does it attempt to maintain a minimum of moral dignity in society.

There are, however, in the doctor-patient relationship, as well as in the relationship between doctors themselves, or between doctors and third parties, aspects, some of which are very significant, which cannot be regulated by legal provisions, because, in essence, they are purely moral duties and rights. It is not possible, for example, to impose by law the intensity with which a doctor must be self-sacrificing in the service of his patients, or to prescribe how much time he must devote to the study of medicine, or how critical he must be of his own conduct. It is these moral duties that are the proper domain of medical ethics and deontology in the Code. The precepts of the Code are primarily positive in nature: their main purpose is not to prohibit or condemn certain actions, but to inspire and encourage the physician to practise medicine with dignity and skill. Some believe that a Code of Professional Conduct should limit itself to listing prohibited or inadvisable actions, as these are the only actions that can be subject to disciplinary infraction and correction. But to give the Code a preponderantly penal tone would be to deprive it of its best potential. A code of prohibitions is incapable of elevating the professional conduct of physicians. Deontology must have the function of inspiring the physician's entire conduct.

3. It should be noted here, although this is dealt with in the commentary on article 2.2, that the Code is part of a broader set of normative documents, which complete it, develop it or give it binding force. Sometimes they are referred to in the letter of the articles (as in 32.3 or 37.5). These documents include, first and foremost, the General Statutes of the European Medical Association (EGOMC) and the Statutes of the committee General Association of Medical Associations (ECGCOM), as well as the Declarations and Recommendations of the committee Standing Committee of Doctors of the European Community, the association World Medical Association, the Principles of European Medical Ethics of the lecture International Order of Physicians, and the Declarations of the Central Commission of Deontology.

article 2.1. The duties imposed by this Code are binding on all physicians in the exercise of their profession, irrespective of the modality in which they practise it.

attendance This article enshrines the universality of the rules of professional ethics: all members of the profession, whether they are managers or not, whether they have been practising for many years or are newly registered, whether they work in private or public medicine, in hospitals or in primary care, all of them, including medical inspectors and civil servants, if they practise medicine, must conduct themselves in accordance with the provisions of the Code. Foreign doctors authorised to practise in Spain, whether they come from the European Community or from outside it, are not excluded.

No subject of exemption or privilege is foreseen here. By virtue of the democratic nature of the WTO, there is absolute equality of rights, obligations and opportunities among members, which is acquired through membership. The EGOMC formally establishes this equality, both in terms of the rights and duties of members (degree scroll IV of the EGOMC), and in terms of eligibility to hold office or to sit on committees (article 11 of the EGOMC; article 5 of the ECGCOM). The WTO, as a member of the World Medical Association ( association ), has signed a Declaration on Human Rights and Individual Freedom of Physicians which calls for equality of opportunity for all physicians and strongly condemns the deprivation of the rights, privileges and responsibilities of membership of any physician, duly graduate and without disciplinary sanction.

It cannot be ignored that there is, inside and outside the medical profession, a movement against the obligation to be a member of a medical association. The Colleges are, however, recognised by the Spanish Constitution as Structures to develop and protect the freedoms, rights and duties of citizens. The article 36 of our fundamental law reads as follows: "The law shall regulate the peculiarities of the legal regime of the Professional Associations and the exercise of the qualified professions. The internal structure and functioning of the Associations shall be democratic". This law has not yet been drafted. Some remnants of the largely repealed text of the pre-constitutional Law on Professional Associations are still in force.

Some Autonomous Communities (Catalonia, Canary Islands) have already endowed themselves with specific laws on Professional Associations, and some others are preparing the corresponding legislation. It will be necessary to wait for the legislative process of the State and the Autonomous Communities to be completed to see what the future configuration of the Colleges will be.

article 2.2. Failure to comply with any of the rules of this Code constitutes one of the disciplinary offences defined in the General Statutes of the Spanish Medical Association, which shall be corrected by means of the procedure established in the aforementioned Statutes.

This establishes the necessary connection between the deontological prescriptions of the Code and the procedural and penal system of the Statutes. The entire degree scroll VIII of the EGOMC is devoted to describing the disciplinary regime of the WTO, which is independent of the other regimes (civil, criminal or administrative) to which members, as ordinary citizens, are subject. It is also independent of the disciplinary regime established for the staff social security medical system by Decree 3160/1966.

It has already been pointed out that breaches of ethical rules are of different nature and amount. Some are merely tolerated, albeit less exemplary, variants of the recommended conduct, while in other cases the Code itself states that they are typified misconduct. It is not necessary, however, for all ethical misconduct to be classified as such in one of the articles of the Code. article 64 of the EGOMC, which contains a list of disciplinary offences, classified as minor, less serious, serious and very serious, establishes in its issue 5 that "...non-compliance with the rules of the Code of Ethics that are not specified in numbers 1, 2, 3 and 4 shall be qualified by similarity to those included in the aforementioned numbers of this article".

From the above, all members are obliged to know precisely everything related to the WTO's disciplinary regime, as contained in the aforementioned degree scroll VIII of the EGOMC: its general principles, the disciplinary offences typified and their Degrees, the corresponding sanctions, the means of extinction of disciplinary liability, the competent sanctioning bodies and the procedure to initiate, investigate and resolve disciplinary proceedings and to appeal against the corresponding resolutions. This knowledge is necessary for two reasons. Firstly, because no member should be unaware, in the event of being disciplined, of the extensive guarantees and rights available to them for their defence and legal security. Secondly, because, in the event of being appointed judge trainer (article 68, 4 of the EGOMC), the member needs to be familiar with the rules of the procedure he or she is to hear.

The disciplinary jurisdiction of the WTO is exercised in the first instance written request by the Provincial Colleges, whose board Board of Directors has the power of investigation and sanction. With the exception of misdemeanours committed by members of the Boards of Directors of the Colleges or of the committee General, which are skill of the Assembly of Presidents. Against the decisions of the Colleges, an appeal may be lodged with the committee General of Medical Colleges and, finally, against the decision issued by the committee General, the interested party may appeal to the Contentious Jurisdiction-management assistant.

Finally, it should be noted that, although Insalud's disciplinary regime is independent of the collegiate deontological jurisdiction, the same Decree 3160/1966 requires the mandatory intervention of the corresponding high school of Doctors to report on disciplinary proceedings promoted by Insalud against doctors working in its service.

article 3. The Spanish Medical Association assumes as one of its primary objectives the promotion and development of professional ethics, devoting its preferential attention to disseminating knowledge of the precepts of this Code and undertaking to ensure compliance with it.

This article defines the attitude internship of doctors, through their organisation, towards professional ethics. In response to the authorisation granted by society to doctors organised in a corporation that they, and only they, may legitimately practise medicine, the medical corporation undertakes to regulate the professional work of its members, assuming the duty of self-regulation for this purpose. This duty is to be performed with responsibility and diligence. article 3 states that the WTO places it at the centre of its interests and proclaims that this commitment cannot yield to any other.

To some extent, the content of this article is broadly consistent with the Declaration of Madrid on Professional Autonomy and Self-Regulation, promulgated by the World Medical Association association (October 1987). First, this important Declaration affirms that self-regulation and autonomy of the medical profession is an absolute necessity, the sole reason for which is to ensure that physicians can freely and independently exercise their professional judgement regarding the most appropriate care and treatment of their patients. Accordingly, in order to channel this professional freedom, existing codes of professional ethics should outline the permissible limits of physicians' conduct and activities. Secondly, the Declaration affirms that the code of ethics should be such that the public can rely on it to make an honest and objective assessment of faults and conflicts arising in the practice of medicine. Thirdly, it states that National Associations are obliged to carry out effectively their duty to correct promptly violations of professional ethics and to penalise guilty physicians.

It is worth emphasising the idea that, through this article, the Spanish Medical Association undertakes to offer its members, by means of the continuous deontological Education , an increasingly precise knowledge of the precepts of the Code, and to use all its energy to ensure that this is the nerve of their professional action. This commitment is also proclaimed in the EGOMC, whose article 3º, 2, states that the fundamental aim of the Organisation is the safeguarding and observance of the deontological and ethical-social principles of the medical profession and of its dignity and prestige, to which end it is responsible for drawing up the corresponding Codes and applying them. It must also make them known to the public, so that they may be aware of the standard of conduct required of physicians.

Ensuring the validity of the Code also requires its permanent update, a function that is carried out through the occasional modification of the text of its articles and, above all, through the revision, at least every two years, required by the final article of the Code. This function is also exercised through the publication of the Declarations of the Central Ethics Commission which are approved and promulgated by the WTO General Assembly.