Medical Ethics: The Physician and the Law
Gonzalo Herranz, department on Bioethics, University of Navarra
III Continuing training course s for Primary Care Physicians
Zafra, January 13, 1995
The Need for Statutory Law and Professional Ethics
The O.M.C., a self-governing legal institution
Legislation and Ethics. Bylaws and Code
The Code of Medical Ethics and Professional Conduct: Protection Against Negligence
Attitudes of Association Members Toward Institutional Ethics
Ethical Jurisdiction Under Scrutiny
Greetings and thanks. We are delighted by the cooperation of high school and the University. To Dr. Alberto Becerra, committee of the Zafra MQ Colloquia, and the Office of Student Welfare at the University of Extremadura ( board ). It is heartening to know that this forum will be filled with colleagues and legal experts to discuss the growing importance of law in the professional internship of medicine.
The specific “ topic ” assigned to me—law viewed from the perspective of professional ethics—could encompass many ideas. I am going to focus on one: the “ knowledge ” of statutory law and the professional ethics associated with it, with the “ purpose ” of upholding “ thesis ”: in the “ knowledge ” and “ internship ” of professional ethics and medical law lies the safest and most effective mechanism for avoiding litigation due to “mal internship.” I will repeat this idea like a refrain throughout my presentation, to ensure that the concept is firmly ingrained in your minds.
A physician must possess a basic understanding of the law; at the very least, he or she must be familiar with medical law and the legal regulations governing the profession. He or she must be knowledgeable about human rights, and, in particular, that special category of human rights known as the rights of patients. They may find themselves confronted with the harsh reality of the legal implications of some of their actions, falling victim to the growing assertiveness of many patients amid the rise in malpractice lawsuits. And it is in their best interest to understand the law.
But I am no expert in those aspects of the law, which, moreover, will be covered in great skill by those responsible for the other lessons in this course.
I will therefore focus on the most intimate aspect of the relationship between professional ethics and the law, namely the statutory law governing the medical profession. I would like to speak about it with great enthusiasm. Unfortunately, it is little known, when it should be a frequent topic of conversation among us, so that we might maintain a constant awareness that the O.M.C., as a Professional high school , is not merely a distant public-law entity protected by statute, but a living reality with a well-defined personality and character—one conferred upon it by its own legal regulations. The O.M.C. has, within its General Bylaws, a charter of rights and duties that clearly needs improvement but which, if fully exercised, could make it strong and healthy—invulnerable in its defense of the professional quality of medicine.
The first point I would like to raise is the need for the Medical Corporation to have its own rights, that is to say,
The Need for Statutory Law and Professional Ethics
It is universally accepted that physicians need a self-governing institution. In 1987, the 39th Assembly of the World Medical association , meeting in Madrid, unanimously adopted an important agreement: the Declaration on Professional Autonomy and Self-Regulation, known as the Madrid Declaration. It can help us understand the nature and necessity of corporate law and ethics.
Corporate Law and Ethics—the statement tells us—are intended to be the medical profession’s collective response to the need to establish fair rules that balance the physician’s broad freedom of action with his or her binding responsibility. It adds that the main element of professional autonomy is ensuring that physicians can freely exercise their professional judgment regarding the care and treatment they provide to their patients. This freedom must always be defended and protected, as it is both an essential component of quality medical care and the foremost of patients’ rights.
However, the Declaration goes on to state that, alongside their professional autonomy, physicians, as a profession, assume the public and ongoing responsibility to self-regulate. Although there are many other legal provisions applicable to physicians (in legal codes, in the regulations of National Health Systems, or in the rules governing civil servant physicians, for example), the medical profession is inextricably obligated to regulate the professional conduct and activities of all its members. Only in exchange for the assurance that this manager , and publicly proclaimed self-regulation provides to society can physicians legitimately claim their professional freedom.
The primary purpose t of any self-regulatory system for the health professions, the Declaration goes on to say, is to guarantee the human and scientific quality of the service provided to patients—that is, the physician’s skill , sound judgment, continued professional development, and the freedom to act in good conscience. But it also includes, in addition to the standards pertaining to that microcosm, a responsibility for the sound employment of financial resources, the appropriate use of technology, the Education of the population, and the pursuit of social justice.
Such a self-regulatory function involves constant critical analysis and evaluation. The Declaration reminds national medical societies and associations of the need to maintain an up-to-date Code of Ethics and Professional Conduct that all physicians must be familiar with and to which they must unquestionably conform their conduct. Violations of professional ethics must be promptly corrected, and physicians whose conduct is deficient must be subjected to disciplinary transcript . Physicians found guilty must not only receive the prescribed penalties, but the medical association also has a responsibility to facilitate their rehabilitation.
This disciplinary and rehabilitative function is a serious responsibility that—independent of any other jurisdiction—falls to professional organizations, which shall carry it out promptly, effectively, and efficiently.
The Declaration concludes by stating that it is necessary for the public to be aware of the existence of this effective and manager system of self-regulation and to place their trust in it as a resource fair, honest, and goal mechanism for resolving conflicts and issues related to the practice of medicine and the care provided to patients. In this way, the physician’s right to treat his or her patient without undue interference with his or her professional judgment and discretion can be ensured.
We see, then, that it is an accepted and well- rule d view that physicians, both individually and as a group, must balance freedom with responsibility, rights with duties, and the possibility of negligent error with professional discipline .
The professional association is expected to be a reputable institution of self-governance and self-discipline, in which we all work together to uphold the ethical and professional standards of our profession. That is the best antidote to malpractice and the lawsuits that accompany it.
attention s the legal authority of the WTO in the second point of this talk.
The O.M.C., a self-governing legal institution
The O.M.C. is our self-governing institution. The Constitution grants our professional association official recognition within Spanish society, stipulating that our internal structure and operations must be democratic, and that we must comply with the legislation enacted by the Spanish Parliament. We complain—and we are entirely justified in doing so—about the unjustifiable delay by our legislature in enacting the Law on Professional Associations. It is deeply regrettable to operate in a legally precarious “ status ,” relying on insufficient remnants of previous legislation, while at the same time a progressive fragmentation of regulations is taking place as regional statutes for professional associations are enacted without a common “ framework ” to give them even a minimal sense of identity. All of this is, quite rightly, a cause for concern.
Even under these circumstances, there is much we can do with what we have: we are an organization built on a democratic internal structure and democratic operations.
This constitutional mandate should, in and of itself, be an inexhaustible source source of inspiration, for therein lies the legitimacy of all our statutory rights and our codified code of ethics. Let us recall that Article 1, Paragraph 1 of the General Statutes ( article ) states that the Medical Professional Association is composed of the Official Provincial Medical Associations and the General Medical Association ( committee ), which are public-law corporations, (...) with democratically elected governing bodies ( Structures ), a representative nature, and their own legal personality (...).
Let’s ask ourselves: Do we doctors, in fact, govern ourselves? Do we know how to responsibly uphold our internal democratic organization? Do we strive to act in an ethical manner, and not just in a legal one? Do we help executives manage in a way that is truly consistent with professional ethics? These are extremely important questions, as they lead us to the “ source ”—the source from which our internal law flows, the law that is closest to us and the one that should most inform our conduct.
What does it mean to say that the O.M.C. is democratic in nature? This is not a rhetorical question, but an unavoidable preliminary issue. For us doctors, it is one of those things we cannot take for granted, and which we need to reflect on from time to time. Because if we truly knew what the O.M.C. is, then something would happen that does not currently happen: it would matter much more to all of us as members—it would matter to us in a staff , and immediate way—and not just, in their own way, to the leaders we elect.
In my view, the moral and legal strength of the WTO as an institution stems from its representative nature—that is, from its democratic structure and function. And, when considering the General Bylaws from an ethical perspective—we are here this afternoon to understand the relationship between professional ethics and law—it quickly becomes clear that the WTO’s democratic-representative framework rests on two pillars. One, minor and purely functional, is the electoral mechanism by which leadership positions in the Colleges and the General committee are filled. The other, substantive and fundamental, is the attribution of the Organization’s supreme sovereignty to the General Assemblies—those of each high school , and the General committee . In both respects—elections and assemblies—all members are called upon to participate; that is, they have both the duty and the right to participate, directly in the former and through delegates and elected representatives in the latter.
The O.M.C. is democratic because all members are equal. We are all eligible for positions on the Board of Directors board provided we meet the basic requirements requirements (being Spanish—or, currently, a citizen of the European Union—being a member of the association, practicing the profession, and not being subject to any legal or statutory prohibition or incapacity). We all have an equal right to participate in the corresponding General Assemblies: those of each high school or those of the committee General. These General Assemblies are, within their respective spheres, the supreme bodies of corporate representation, which pass resolutions by majority vote. And those decisions, if they are procedurally sound and in accordance with the General Bylaws, are binding on everyone equally—on both executives and members. In the medical association, the members are sovereign. The executives are their delegates, tasked with a dual mandate: to ensure compliance with the statutory and ethical rules, and to develop and implement the resolutions of the Assemblies.
There is, therefore, institutional and public legitimacy for the decisions made by these supreme bodies. But our day-to-day experience convinces us that, in fact, the mechanisms of democratic representation do not function satisfactorily in many medical associations. The Code of Medical Ethics and Professional Conduct contains a “ article,” Article 39.2, which outlines the member’s moral obligation to “cooperate with the association’s activities and contribute to the corresponding expenses.” The method used to ensure compliance with this clause is paradoxical. Cooperation with the association’s activities has—very democratically, as we shall see—been left in a regulatory vacuum. The obligation to pay association dues, on the other hand, has been equipped with an efficient enforcement mechanism: in no other subject are the bylaws more stringent. article , Section 43(b), imposes on members the duty to remain current in the payment of association dues, while Section 51 details the measures to be applied to members in arrears—measures which, while including the granting of payment deferrals, also establish the possibility of fail the member’s right to practice if they refuse to comply.
That’s all well and good for helping members fulfill their financial obligations to the organization. But it seems that, unfortunately, such drastic measures cannot be taken to encourage members’ participation in the planning and management of the association’s activities. In advanced, democratically mature countries, citizens are granted the freedom to abstain from participating in elections and, of course, the freedom to take no interest in politics. Only a few societies, still in the early stages of their democratic development, require citizens to vote and punish electoral abstention. In this sense, the O.M.C. is a mature institution and grants its members full freedom—or rather, full responsibility—when it comes to deciding their participation in the life of the association. The decision to participate or not cannot, morally speaking, stem from indifference or neglect, but rather from a thoughtful decision, as there is a moral obligation to contribute to the life of the association. All members are bound by the moral duty to actively participate in the affairs of the association: given its democratic structure, the views of each individual—so diverse and, at times, so irreconcilable—are of interest to the community and must be part of the system of checks and balances that is so important for reaching wise and balanced decisions.
The indifference of so many members causes obvious harm to the O.M.C., weakening it to the point of nearly extinguishing it as an institution. Like any democratic organization, the O.M.C.—and, for that matter, the professional associations—derive their vitality and strength from the contributions of their members. Its statutory purposes are extraordinarily appealing, but they can only be achieved through the active participation of its members, their efforts, and the efforts of the officers they elect. An irreplaceable way for members to collaborate with the O.M.C. is to participate in the election of officers—and, in particular, through their active presence at the professional associations’ General Assemblies. These are duties that stem from the very democratic nature of the O.M.C. and from the loyalty owed to it as an institution that belongs to us. If participation in elections or in the Assemblies is leave, a vicious cycle begins that slowly but inexorably kills the life of the organization. When there is only one candidate running and leave the participation of the electorate is low, democratic vigor withers. It is therefore inevitable that leaders will subjectively feel they lack representativeness and the necessary moral authority, causing both their leadership and the ethical oversight of professional practice to weaken. It is very easy, then, to fall into inaction. But leadership that lacks dynamism and moral authority spreads and reinforces the perception that the professional associations—and, ultimately, the O.M.C.—are ineffective, which in turn generates greater indifference and a further decline in voter turnout in subsequent elections.
The serious problem is that, inevitably, the void created by doctors’ limited participation in collegial governance is filled by political, bureaucratic-health, or union bodies—which are certainly legitimate in their own spheres, but encroach upon ours, which has been abandoned.
And that discouragement spreads to the public: ethical pro written request , for example, is abandoned, and its role is transferred directly to the ordinary courts of law. This creates the ideal circumstances for those outside powers—political, union, and judicial—to increasingly encroach on the professional association’s own sphere. That could spell the long-term demise of the professional association.
To summarize what I have said in this second point of my talk, it can be stated that the O.M.C.—its self-regulatory function, its capacity to create domestic law and enforce it—is whatever its members freely decide it to be and to be worth. In this regard, it follows the fate of democratic institutions: to thrive or to wither away in a persistent vegetative state.
Let's now move on to analyze the third point, which I believe is the central focus of this talk:
Legislation and Ethics. Bylaws and Code
The contribution that the association makes to society in exchange for the exclusive authority to regulate the practice of medicine encompasses two distinct but closely related areas: one governed by law and the other by professional ethics. The former is set forth in the General Bylaws of the Medical Association; the latter, in the Code of Medical Ethics and Professional Conduct.
Although the “ essay ” of the General Statutes is entrusted to the corporation itself—which is presumed to possess the necessary institutional maturity, ethical and social responsibility, and technical “ skill ”—it is nevertheless the case that, in order to be valid, the Statutes must be submitted for approval, not by the Cortes, but by the Government. Promulgated as Royal Decrees, they thus become part of the nation’s legal system. It is obvious that, as things stand, the Statutes fall within the peculiar sphere of influence of political power, which can have negative implications: in fact, for years now, the medical profession has felt the need for a profound statutory reform—a reform that has not been carried out due to the fear that the executive branch might use the opportunity to increase its influence and control over the O.M.C. It may be necessary to wait until the constitutional mandate to enact the long-awaited Law on Professional Associations is fulfilled so that the conditions conducive to statutory reform are in place.
For the time being, we must rely on the current General Statutes of the Medical Association, approved by Royal Decree 1018/1980, dated May 19. (In recent years, following the enactment by the Autonomous Communities of regulations governing professional associations, the way has been paved for the “ development ” of regional codes of ethics, as has occurred, to the best of my knowledge, in Catalonia, the Canary Islands, and Galicia). The Statutes are very extensive in content and not easy to describe. It is customary for them to be provided to physicians upon registration with the high school. They should be studied by all physicians, young and not-so-young alike, but, it must be acknowledged, they are, in general, largely unknown.
They describe the legal nature of the O.M.C., its representative character, and the mandatory requirement of professional association membership for those who practice the profession in any of its forms. This requirement, which was called into question years ago, can now be considered res judicata. This is confirmed by legislation and case law at the level of the Autonomous Communities, the State, and the European Union. By virtue of its bylaws, the O.M.C. cannot remain detached from public affairs.
On the contrary, it is called upon to establish a close cooperative relationship with the State and the Autonomous Communities in promoting the common good of the nation, in providing expert input on legislative proposals, and—in cooperation with the General Directorate for Health ( public administration ) and health authorities—in protecting public health and ensuring the fairest, most efficient, and most equitable regulation of the health attendance .
Its purposes are to advocate for the proper regulation of the medical profession, the legitimate defense of the professional interests of its members, and the exclusive representation of the profession; the safeguarding and observance of the deontological and ethical-social principles that govern it; and the promotion of the continuous improvement of the scientific, cultural, economic, and social standards of its members, with the development of systems for continuing Education , as well as social welfare and promotion.
The system is territorial, with agencies at the national, regional, and provincial levels.
Naturally, the Bylaws devote considerable attention to the structure and functions of the governing bodies and offices, as well as to the system for electing the members who will hold those positions. With regard to the latter, the system is very open, democratic, and transparent. The General Assemblies are recognized as the supreme bodies of collegial representation, at both the provincial and national levels, and the Executive board t or the General committee t must report on their management to these assemblies.
I believe it is worth recalling the dense legal and ethical content of Article IV ( degree scroll ) of the Bylaws, which deals with membership in the Association. Along with the requirement for membership, this article establishes the principle of equal rights for all members, although various categories of membership are recognized (active, inactive, and honorary). There is a robust system of safeguards to ensure the right to membership, but dual membership is restricted to cases of justified necessity; however, physicians who practice the profession without being registered with the high school are subject to disciplinary action.
article 42 of the Bylaws lists the rights of members: the right to actively participate in corporate governance, with the authority to exercise the right to petition, the right to vote, and the right to hold executive positions and offices; the right to be defended in the event of harassment or persecution arising from the practice of their profession; the right to be represented and advised by the high school and its Legal advisory service in the event of judicial or administrative disputes; not to be restricted in the practice of their profession, except in cases where such practice does not comply with the appropriate ethical standards; not to bear any burdens other than those validly agreed upon in accordance with the Bylaws; and to receive the benefits and subsidies provided for in the institutional pension plans.
Among those rights, there are some that are withering away because they are not being exercised. And that’s a shame: we are living in a time when studying and development those rights could make the future look more hopeful.
The Bylaws also describe the duties of members toward the Association—duties that reflect loyalty, solidarity, attention to details of administrative oversight and advertising, and the availability to participate in the Association’s management.
The Bylaws also contain a list of prohibitions—in addition to those set forth in the Code of Ethics and Professional Conduct—that pertain primarily to upholding the scientific and human dignity of professional practice. This list is a diverse compilation that includes, side by side, criminal acts, financial corruption, administrative irregularities, acts of quackery, and the practice of the profession while under the influence of incapacitating physical or mental conditions.
The disciplinary regime addressed in Chapter VIII of the Statutes ( degree scroll ) deserves special mention. All members of the Bar should be thoroughly familiar with it, as we may be appointed as investigating judges in a disciplinary proceeding ( procedure ) or may have to defend ourselves if disciplinary proceedings are brought against us. I would just like to highlight a few points here to encourage everyone to study those six pages of our Statutes.
The disciplinary regime established by the bylaws is autonomous; that is, it applies exclusively to the cases specified in the bylaws. It is independent of other legal regimes—labor, administrative, civil, or criminal—under which members may be subject to proceedings. It is governed by a solid principle of legal certainty, which rejects any status situation of defenselessness or capricious and arbitrary use of the disciplinary procedure : sanctions may not be imposed except pursuant to transcript an investigation conducted for that purpose, unless the offense is minor; and even then, the interested party must be granted a hearing. The authority to conduct investigations and impose sanctions rests with the Boards of Directors, not with the Ethics Committees, whose function is to verify, together with the Legal advisory service of the high school, that the transcript complies with the law in all respects. The disciplinary regime is universal: the directors of the Bar Associations and those of the General committee are not immune from statutory liability; the authority to investigate and impose sanctions rests, where applicable, with the Assembly of Presidents.
The Bylaws contain a brief list of defined disciplinary offenses, classified in their “ Degrees ” as minor, less serious, serious, and very serious. The Statutes confer criminal significance on the offenses described in the Code of Medical Ethics and Professional Conduct by stating in Article 64.5 that any breach of the rules of the Code of Medical Ethics not specified in sections 1, 2, 3, and 4 [referring to the four Degrees categories of offenses mentioned above] shall be classified by analogy with those included in the cited sections of this article. In other words, the Code receives this sort of legal endorsement—admittedly not a very strong one—through the mechanism of interpretation by analogy. It is well known that many legal scholars, clinging to the requirement of explicit criminalization, are reluctant to accept employment the use of analogy and similarity as standards for determining the punishability of certain conduct. In any case, paragraph 5 of article 64 establishes a link of indeterminate strength between statutes and the Code, between legislation and ethics.
Alongside the list of offenses is the list of disciplinary sanctions. The Bylaws also specify the grounds for the termination of disciplinary liability, regulate the disciplinary pro skill , and, finally, establish the appeals that may be filed with the Contentious-management assistant t Jurisdiction against the decisions issued by the Professional Associations or the General committee regarding disciplinary proceedings.
But our greatest ethical asset lies not in the General Statutes, but in the Code of Medical Ethics and Professional Conduct. Unlike in France, for example, the Code has not received legal recognition in Spain. The Code is not, however, devoid of legal significance. The doctrine of medical ethics is reference letter binding in many programs of study areas of medical law and research general legal practice. It receives a certain degree of public recognition when its articles are cited in rulings by the ordinary courts of justice or in the preambles to legislative acts. This certainly enhances the legal significance of codified medical ethics.
Finally, there is the indirect and controversial legal validation of the Code to which I referred a moment ago: the incorporation of the Code’s content into the statutory disciplinary regime, as provided for in Article 64, paragraph 5, of the General Bylaws of the O.M.C.
The Code of Medical Ethics and Professional Conduct: Protection Against Negligence
Given their different nature, the “ rules and regulations ” of the Codes is much more extensive and nuanced than that of the Statutes. The Code’s potential to guide and inspire a physician’s conduct is, in theory, very great. In reality, however, its authority is more moral than legal. The prevailing view in the professional consciousness is that there is a strong asymmetry between Statutes and Codes, as there is a tendency to consider statutory norms as having a certain binding force—that of the law—while the articles of the Code are viewed more as rules of courtesy, mere moral advice, or invitations to voluntary or supererogatory acts. But of one thing I am certain: it is highly unlikely that a physician who carefully observes the ethical standards will ever find themselves involved in a malpractice lawsuit.
What is the general content of the Code? The Code can be divided into several major sections covering general duties, duties toward patients, relationships with colleagues, professional duties, social responsibilities, and, finally, issues related to advertising and fees.
The Code emphasizes respect for the human person, which is specified in the recognition of the unique dignity of the sick person; in the condemnation of any subject discrimination against patients on the basis of their birth, race, sex, religion, opinion, or staff or social status; in the priority of the patient’s interests over those of their caregivers; in the affirmation of the duty not to intentionally harm the sick person; in the altruistic duty to provide care in cases of emergency, epidemic, or disaster, even at the risk of one’s own life; in the commitment to make the best use of the resources that society makes available; and in the promotion of community health. Patients and physicians must mutually respect each other’s freedom of choice, collaborate in the pursuit of the highest quality of health attendance , and are obligated to report any deficiencies.
Professional respect takes many forms, which are detailed in the Codes: mutual trust, which is best achieved through freedom of choice; refraining from imposing one’s own convictions on the other party; the duty to respect the patient’s privacy— staff , and physical—which must not be infringed upon without just cause; the commitment to ensure continuity of care once it has begun; fulfilling patients’ right to receive information about the diagnosis, treatment, and, to the extent possible, the prognosis of the illness; obtaining the patient’s informed consent for the internship of diagnostic and therapeutic interventions involving a certain degree of risk; the obligation to certify truthfully; and the obligation to keep medical records up to date and protect them from the prying eyes of strangers. Patients’ dignity must be respected through the cleanliness of the hospital and the doctor’s office, their proper equipment, and the promptness with which the patient is attended to. There is a whole code of ethics governing the small but significant details of doctors’ daily interactions with patients. This code of ethics is the best antidote to haughty or contemptuous behavior, for which patients may seek revenge by taking their doctors to court.
In addition to the traditional rules governing professional confidentiality and their legal and ethical exceptions, there are now new considerations arising from the complexity of hospital medical attendance , the development of administrative oversight mechanisms, and the possibilities resulting from the computerization of data and clinical protocols.
The Code sets forth standards regarding the technical and ethical quality of medical care. It imposes on physicians a duty to practice based on scientific knowledge and to stay current through study and continuing Education . It requires them to possess the technical and ethical qualifications necessary to act independently and responsibly. It establishes standards regarding so-called alternative practices and requires licensed physicians who use them to objectively evaluate the results obtained, in order to determine their Degree level of effectiveness. Logically, the Code condemns quackery, fraudulent practices in medicine, and the association of physicians with folk healers or with those who, without being physicians, illegally practice the profession.
The guidelines regarding respect for life and human dignity are contained in a comprehensive and diverse chapter that encompasses principles of great significance. It states that there is no stage of human life that does not deserve the physician’s respect. Human life must be respected from its very beginning: a sick embryo or fetus must be treated as agreement according to the same standards as other human beings. The physician shall inform patients who request it about issues related to the transmission of human life, so that they may make decisions with sufficient knowledge and responsibility. The ethical dignity of the physician who refrains from performing an abortion is emphasized, but the suspension of disciplinary measures in cases of legal abortion is recognized. Euthanasia is condemned, but at the same time, futile medical treatment is strongly disapproved of, and the professional and ethical dignity of palliative care is highlighted. Guidelines are provided for the ethical performance of transplants. Physicians are prohibited from participating in acts of torture or ill-treatment and are required to report such acts. Guidelines are provided for reconciling, when they conflict, the duties to respect patients’ freedom and to preserve their lives in cases of attempted suicide, hunger strikes, or refusal of treatment. The guidelines on biome research —as set forth in the Declaration of Helsinki of the World Medical association —are also enshrined.
The code of ethics governing relationships among physicians is discussed at some length, centered on the fundamental concepts of collegiality and equality: mutual, deferential, respectful, and loyal attention ; the defense of a colleague who has been unjustly slandered; refraining from disparaging criticism of a colleague; the proper way to resolve differences of scientific or professional opinion; the obligation to report a colleague who violates ethical standards or is incompetent; the obligation to substitute for a colleague who is unable to perform their duties; and the ethical nature of hierarchical relationships. Ethical criteria are established for the formation of groups or teams of physicians to prevent abuse by one group over another. It also addresses physicians’ relationships with members of other health professions—relationships based on mutual esteem and respect, both for the individuals themselves and for the independent and competent performance of their respective duties.
The Code prescribes rules for advertisingto ensure that it is in keeping with the dignity of the profession and does not degenerate into a commercial claim. It devotes a chapter to the ethics of scientific and professional publications, as they play a decisive role in the continued Educationof colleagues and in the professional and academic promotion of each individual. It condemns criminality at academic publication.
For the first time, the Code includes provisions on the ethical conduct of members in relation to the Medical Association and on the conduct of the committee s of the Medical Associations and the General . It emphasizes the moral obligation to participate in assemblies, elections, and committees.
The Code provides guidelines for ethical conduct for members of the professional association who work in special situations: salaried physicians, civil servants, or expert witnesses. It concludes with guidelines on the ethics of professional fees.
article requires periodic review of the Code to ensure it remains current and effective in promoting and development the ethical principles that should guide professional conduct. The OMC Central Ethics Commission has proposed—and the General Assembly has C —that future update of the Code be carried out not through a biennial review of its text, but rather through statements on issues requiring new rules and regulations or updates to existing ones; such statements take effect once they have been approved by the General Assembly.
This is the richness of the Code. We should all be familiar with it and reflect on it. And yet, not many members of the medical association have studied it. What do doctors think of the Code? I believe it’s worth taking a brief reference letter look at the
Attitudes of Association Members Toward Institutional Ethics
In my opinion, the Degreeof adherence to and recognition of the rules of professional ethics does not correlate so much with the answer to the theoretical questions about the legitimacy of codes, institutions and jurisdictions - which is certainly an interesting issue - but with the psychological and moral attitude of the members and managers.
How do doctors react to the Code and ethical management? This issue has not been seriously studied in Spain. There is, however, ample evidence to suggest that, among healthcare professionals, there are a few typical attitudes that can be described in four main points.
An attitude of distant respect and lukewarm acceptance prevails: for most members, professional ethics is something marginal and vague—something taken for granted and which, of course, can be ignored. It is discussed only occasionally. The Code and the Bylaws—which, along with the ID card, were provided to us by the Secretary of the high school —are lost in some remote corner of the library staff.
Among the older members of the Bar Association, this attitude of benign ignorance prevails. Many members believe that what really matters—and more than enough—is having good moral judgment and the desire to be a good person. That, along with the wisdom and experience that come with age, is enough to lead a just life. The Code, they believe, has nothing to teach us.
Other professionals—and there are quite a few of them—are skeptical about the value of corporate ethics. There is a pessimistic skepticism that denies the Code’s role as a source of “ guide ” and inspiration. They believe that good professionals are good by instinct and do not need a Code; their technical “ skill ” is sufficient for them. And that the bad ones—if there really are any—are hopeless scoundrels, for whom ethics can do nothing.
There is another, more epistemological form of skepticism—that of those who believe that deontology is a highly subjective matter; that its written rules can change overnight under the influence of politics or legislation; that the erosion of a physician’s responsibility is an inexorable process in the face of pressure and within the context of the healthcare system; and that, in any case, professional life dulls the conscience and hardens the heart. Furthermore, they believe that professional ethics involves no small amount of hypocrisy and just as much corporatism: depending on what suits the situation, the rules are either forgotten or brought up.
Finally, there are members of the professional association who reject the code of ethics outright. Their reasons are political rather than ethical. And they are found at both extremes of the ideological spectrum. Some seek the repeal of the code of ethics as a path toward a libertarian, laissez-faire morality. Others advocate for that repeal as a means of subjecting medicine to a rigid, state-monopoly healthcare system. For some, the Code of Ethics is seen as an obstacle to commercial amorality; for others, it is a stumbling block to the proletarianization of the physician.
However, it seems to me that, over the years I have been involved in the field of deontology, deontology has been gaining ground in the eyes of healthcare professionals. This may be attributed to a heightened social awareness of issues in healthcare ethics, the rise in mal internship-related lawsuits, the media’s focus on bioethical issues—which, to the average person, is synonymous with medical ethics—and the much more active role that clinical ethics now plays in the daily life of hospitals and physicians themselves.
To respond to this sincere concern among the public, we should take a greater interest in medical ethics and law. After all, the current situation is not one in which we can feel entirely at ease. A movement has emerged in European society that is worth understanding and analyzing.
Ethical Jurisdiction Under Scrutiny
It cannot be said that medical organizations peacefully enjoy the rights to autonomy and self-regulation that society has granted them. From outside the profession—and occasionally from within—voices are raised denouncing the self-regulatory system as abusive and calling for its abolition or reform. Fortunately, this outcry is not very strong, nor has it caused any major upheaval in public opinion so far. But there are groups that accuse the professional ethics system of being ineffective and corporatist. The truth is that it does not enjoy much prestige. Nowadays, people prefer to take their complaints to court; they no longer go to the Medical Association ( high school).
status is beginning to cause us concern, more because of the rise in malpractice lawsuits than because of the threat of the collapse of the institutional ethical system. But losing the latter would be an irreparable loss.
Some view medicine as a matter of general policy. It ranks very high on the electorate’s list of priorities and even higher in the state budget. Political leaders consider medicine to be one of the most profitable investments for gaining the electorate’s support. Politicians are well aware that control over the medical “ class ” provides significant capacity for social manipulation. The independence of physicians is viewed by some politicians as a troublesome obstacle to the implementation of their plans. And some far-sighted politicians have begun to take steps to weaken the ethical framework, as they see it as the main source of strength for medical organizations.
In 1988, the European Parliament adopted—at the initiative of Members of Parliament Kuijpers and Vandemeulebroucke and despite the “ civil service examination ” of some Members of Parliament who were physicians—a resolution on medical ethics in Europe. The resolution established that, in light of the impending single market and the resulting increase in the free movement of physicians and patients, it was imperative to harmonize the medical-ethical standards in force across EU member states. This harmonization should unify not only the disparate national codes of medical ethics but also the disparate disciplinary procedures. Citing the need to apply the standards of the European Convention on Human Rights and the European Charter of Patients’ Rights, and drawing attention to the challenges posed by an aging population, the importance of promoting healthy lifestyles, curbing the use of medications, regulating the use of advanced medical technology, and implementing unified solutions to the challenges arising from scientific progress; in view of the complexity that healthcare has reached today, in which the physician no longer occupies an exclusive or dominant position but is rather one member of an interprofessional team that includes dentists, psychologists, pharmacists, nurses, paramedics, and social workers, the European Parliament’s Resolution, in addition to noting that the new ethical codification of medicine would be included in a code common to all health professions and would be drafted with the active participation of the various social groups concerned, established that collegial discipline —for matters of the greatest importance, that is, those involving suspension, be referred to the ordinary courts of law, and, for less serious matters, to disciplinary commissions, which would conduct their proceedings in open session and include patient representatives among their members.
As is often the case with so many decisions made by EU bodies, this European Parliament resolution seemed destined to be shelved and forgotten. Medical organizations in EU countries and the EC’s Permanent committee of Physicians turned a deaf ear to it. They did not even discuss it at their meetings. No one took any initiative to challenge it, not even to refute it. It was viewed as a mere reprimand for the erratic and capricious conduct of the ethical oversight bodies in certain EU countries. Its most positive aspect—the drafting of a common Code of Ethics—has been met with outright rejection.
But that does not mean that, over the past five years, its proponents have been sitting idly by or that their ideas have ceased to evolve. The Dutch Parliament has C passed a Health Professions Act that has radically changed the rules governing professional practice and medical-ethical jurisdiction. The new law allows patients to choose the subject type of health care they desire and to decide from whom they will receive it. The law is based on the idea that the monopolistic structure of medicine in place until now—which allowed only physicians to practice the healing profession—is obsolete, since, for many years, Dutch society had been freely using alternative forms of therapy, even though it was a crime for anyone other than a physician to provide medical care. The new law has formalized this de facto status . Consequently, there are no longer any restrictions on the practice of medicine. Those who consider themselves qualified may offer their services, although they will not be permitted to perform high-risk medical procedures (surgery, anesthesia, obstetrics). Everyone—whether a doctor or not—will be judged according to the same criteria in the event of complaints regarding harm to patients. This pertains to the abolition of the medical monopoly.
Another important aspect of Dutch law concerns the changes made to the disciplinary procedures of the new professional “ status .” The rules and tribunals will be the same for physicians, pharmacists, nurses, clinical psychologists, dentists, midwives, and practitioners of alternative medicine. Hearings will be held in public.
The Royal Dutch Medical Society (O.M.C.) has stated that the medical profession’s overall reaction to the new law has been positive, and that the changes to disciplinary procedure are very positive.
I don’t know if the Dutch example will be emulated elsewhere. But in Europe, ideas circulate much more freely than goods or services. All it takes is a small group of disgruntled patients or demanding consumers for us to see a national discussion calling for the abolition of the medical profession’s monopoly, the repeal of the requirement for professional registration, or the removal of ethical jurisdiction.
To address such a “ status ,” it will be necessary to learn to argue using sound legal and political reasoning and, above all, to seriously restore ethical practice.
I believe that health ethics is very much alive, very active. And it will be so as long as it tries to respond to the requirements of society. This is the firmest foundation of professional ethics: if it exists, if the Codes are in force, it is because society demands it, demands it. Society wants its sick members to be treated by competent and upright doctors and nurses, i.e. with science, to treat illness, and respect, to treat people. And the more universal and social medical care becomes, the more complex, the more resource-consuming and ambitious in its technologies, the more necessary and richer in content professional ethics becomes, since these new circumstances create and amplify ethical conflicts of enormous magnitude.
In fact, in every modern and minimally organized nation, every profession has its own Code of Ethics. These codes may vary from one country to another in scope and content; they may take the form of public law or private regulations; they may consist of a minimal core of principles around which a lush and fleeting ethical “ rules and regulations ” is built, or they may be a “ Closed ” document, designed to last for years. In any case, medical codes of ethics exist for the same reasons and to the same extent that the Civil Code, the Traffic Code, or the Commercial Code exist: because they respond to a profound human need. And for this reason, we must hold these two small books—which contain our own law and our professional ethics—in high regard. Gaining a thorough understanding of them may be one of the most fruitful outcomes of this course. Moreover, our professional “ work ” would be not only much more satisfying but also much more secure.
Thank you very much.