Health ethics. A long experience
Gonzalo Herranz, department of Bioethics, University of Navarra.
discussion paper in Unión profesional, seminar on professional deontology.
Madrid (Hotel Palace), October 6, 1994, 4:30 pm.
Legislation and ethics. Statutes and Code
Colleagues' attitudes towards institutional ethics
Responsibility rules and regulations
Seven years ago now, in October 1987, here in Madrid, a few hundred metres from where we are, the 39th Assembly of the World Medical Association associationunanimously adopted an important document agreement: the Madrid Declaration on Professional Autonomy and Self-Regulation.
It seems to me that this Declaration can help us to grasp some essential features of health professional ethics. Throughout its long history, from Hippocrates and Florence Nightingale to the present day, health professional ethics is trying to be the collective response of Medicine and Nursing to the need to institute rules that balance the necessary freedom of action of the health professional with his or her obligatory responsibility. Although the degree scrollof this intervention of mine speaks of a long history, I am not going to recount here the pathwaythat goes from the Hippocratic Oath to the ethical rules that Percival designed for the gentlemen doctors in the English hospitals of the 18th century, from the AMA Code of Conduct of 1847 to the London International Code of Medical Ethics of a century later, from the Declaration of Geneva or the Code of the committeeInternational Nurses' Association to the current Charters of the Rights of Nurses. It is a long and interesting history of regulating the conduct of doctors and nurses: one that recognises their capacity for moral error, but, above all, their far greater capacity to rectify mistakes. All this history is, in a way, decanted in the Madrid Declaration.
The Declaration of Madrid begins by stating that the main element of professional autonomy is to ensure that physicians are free to make their professional judgement about the care and treatment to be given to their patients. This freedom must always be defended and protected, for it is both an essential component of quality medical care and the first of the patient's rights.
But the Declaration goes on to state that in addition to their professional autonomy, physicians in corporations have a continuing responsibility to self-regulate. Even if there are other regulations applicable to physicians (in legal codes, in the regulations of national health systems or of medical staff corps, for example), the medical corporation is inescapably obliged to regulate the professional conduct and activities of its members. Only in return for the guarantee to society of such publicly proclaimed self-regulation can physicians legitimately claim their professional freedom.
The primary purposeof any self-regulatory system for the health professions, says the Declaration, is to ensure the human and scientific quality of the service provided to patients, i.e. the doctor's skill, his good judgement, his up-to-date knowledge, his acting freely and in conscience. employmentBut it also includes their responsibility for the good use of economic resources, for the appropriate use of technology, for the health Educationof the population, and for the pursuit of social justice.
The self-regulatory function implies constant critical, evaluative activity. The Declaration reminds National Colleges and Associations of the need to maintain an up-to-date Code of Ethics and Professional Conduct with which all physicians should be familiar and to which they should conform their conduct. Violations of ethics should be promptly corrected and physicians who misconduct themselves should be subjected to disciplinary action at transcript. Not only should they receive the established penalties, but the corporation has a responsibility to provide for their rehabilitation.
This disciplinary and rehabilitative function is a serious responsibility, independent of any other jurisdiction, for professional organisations to carry out promptly, effectively and efficiently.
resourceThe Declaration concludes that it is necessary for the public to be aware of the existence of such a system of effective self-regulation and managerand to gain confidence in it as a fair, honest and goalfair, honest system for resolving disputes and problems relating to the practice of medicine and the care and treatment of patients. In this way, the physician's right to treat his or her patient without undue interference with his or her professional judgement and discretion can be assured.
Legislation and ethics. Statutes and Code 
Perhaps I have gone into too much detail in recounting the concepts of the Madrid Declaration. But I believe that they contain the basic ideas that concern us this afternoon. Health professional ethics is a major part of the response that professional associations give to society in exchange for the rights and privileges that society grants to membership for the better performance of its functions.
Such a corporate response comprises two distinct but closely related areas. One is determined by law; the other is determined by professional ethics. The first is contained in the General Statutes of the professional organisation; the other in the Code of Professional Conduct.
Although the General Statutes are drawn up by the corporation, in order to be valid they must be submitted to the Government for approval. Enacted with the rank of Royal Decree, they become part of the legal system of the Nation. The General Statutes of the Collegiate Medical Organisation were approved by Royal Decree 1018/1980 of 19 May 1980. The General Statutes of the Collegiate Organisation of Healthcare Technical Assistants were approved almost two years earlier, by Royal Decree 1856/1978 of 29 June 1978. (In recent years, following the enactment by the Autonomous Communities of regulations on Professional Associations, the way has been opened for the developmentof the Deontologies at Autonomous Community level). The current statutes lay down rules of professional conduct in their sections on the rights, duties and prohibitions of members. They describe in detail the general disciplinary regime, the procedurefor the transcriptstatutory-deontological , misdemeanours and penalties. They establish the jurisdictional competences, indicate the extinction of disciplinary responsibility and, finally, regulate the appeals that can be lodged against the resolutions that the Colleges or the committeeGeneral have issued on the files.
However, the greatest deontological wealth of the health professions does not lie in their General Statutes, but in their respective Codes of Conduct: the Code of Ethics and Medical Deontology and the Code of Ethics of Spanish Nursing. Unlike in France, for example, the Codes of Ethics have not received legal recognition in Spain. (When the 1979 edition of the doctors' code was presented to the Minister of Health and Social Security, he expressed his satisfaction, declared the professional and public utility of its ethical and deontological rules in the professional practice of medicine and agreed to its publication and dissemination for general use knowledge).
The Code is not, however, without legal significance. The deontological doctrine is of reference letterobligatory in many programs of studyof medical law and of general legal research, but it receives a certain public consecration when its articles are quoted in judgements of the ordinary Courts of Justice or also in preambles of pieces of legislation. This certainly enhances its legal significance.
Finally, there is an indirect and controversial legal validation of the Code in the legal regulatory system. Indeed, point 5 of Art. 64 of the General Statutes of the WTO (the aforementioned Royal Decree 1018/1980), article, which typifies the different Degreesdisciplinary offences, places the content of the Code within the statutory rules and regulationswhen it states that "failure to comply with the rules of the Code of Ethics which are not specified in numbers 1, 2, 3 and 4 will be qualified by similarity to those included in the aforementioned numbers of this article". It is well known that many jurists, clinging to the requirement of explicit criminalisation, are reluctant to use analogy as ruleto determine the punishability of certain conducts. In any case, point 5 of article64 establishes an indeterminate and firm link between Statutes and Code, between legislation and ethics.
Because of their different nature, the rules and regulationsof the Codes is much richer and finer than that of the Statutes. The ability of the Code to guide and inspire the conduct of doctors and nurses is potentially very great. But, in reality, its authority is more moral than legal. The idea prevails in the professional consciousness that there is a strong asymmetry between Statutes and Codes, as there is a tendency to consider the statutory rules as having a certain binding force, that of the law, while the articles of the Code are considered more as rules of courtesy, mere moral advice, or invitations to voluntary or supererogatory acts.
It is worth asking ourselves for a moment about the
Colleagues' attitudes towards 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 the deontological management? No serious study has been made of topic. There is no lack of evidence, however, to suggest that there are a few typical attitudes among health professionals, which can be described in four broad strokes.
The prevailing attitude is one of distant respect, of half-hearted acceptance: professional ethics is, for most members, something marginal and diffuse, taken for granted. It is spoken of only occasionally. The Code and the Statutes are forgotten in some remote corner of Library Servicesstaff .
Among older members, there is an attitude of benign ignorance. There are many members who think that what is really worthwhile is to have a good moral sense, the desire to be a good person. That, together with the prudence and experience of years, is enough to lead a righteous life.
Other professionals, and they are not few, are sceptical about the value of corporate ethics. There is a pessimistic scepticism, which denies its function of guideand inspiration. They think that good professionals are good by instinct and do not need a Code, and that the bad ones, if there really are any, are hopeless rogues, for whom Deontology can do nothing. There is another, more epistemological scepticism, that of those who think that deontology is a very subjective matter, that its written rules can change overnight under the influence of politics or legislation, that the moral fragility of the doctor is inexorable under the pressure of the health system, that professional life is conscience-sapping. Moreover, there is no small amount of hypocrisy and just as much corporatism in this matter of deontology: the rules are either forgotten or brought up when it is convenient.
Finally, there are members who reject the deontological order out of hand. Their reasons are political rather than ethical. And they are at both ends of the ideological spectrum. Some seek the repeal of deontology as a path to a moral laissez-faire libertarianism. Others postulate its repeal as a path to submission to a rigid state-monopoly health care system. For some, deontology is presented as an obstacle to commercial amorality; for others, as a stumbling block to the proletarianisation of the doctor.
However, it seems to me that over the years I have been involved in ethical issues, I have noticed that deontology is gaining ground in the esteem of health professionals. This is perhaps attributable to the greater social awareness of health ethics issues, to the growth of litigation over malpractice internship, to the concern of the media on speechfor this specific problem, and to the much more active presence of clinical ethics in the life of hospitals and of doctors and nurses themselves. I believe that the future of professional ethics is promising and long-lasting.
The following is a brief description of the three directions in which, in my opinion, collegial deontological activity has crystallised over the last 20 years. I will call them rules and regulations, educational and sanctioning responsibility.
Responsibility rules and regulations
The State entrusts the professional organisations with a function rules and regulations. Art. 3.2 of the EGOMC states that the fundamental aim of the WTO is "the safeguarding and observance of the ethical and social-ethical principles of the medical profession and of its dignity and prestige, for which purpose it is responsible for drawing up the corresponding Codes and their application". More succinctly, Art. 75, para. 16 of the Statutes of the Professional Association of Medical Technicians states that it is the function of its general committee"approveto draw up the ethical rules governing the practice of the profession, which shall be of a mandatory nature". Before doing so, the committeeGeneral shall request reportfrom all Provincial Colleges.
What is the general content of the Codes? The Codes of the Spanish health professions are not structured in Books, Titles and Chapters, as is the case in other countries around us. Although they are not grouped into Titles, it is possible to distinguish in the Code for doctors certain major sectors that refer to General Duties, Duties towards patients, Relations with colleagues, Corporate Duties, Social Responsibilities, advertisingand Fees. The Nursing Code is very innovative. It sets out many duties of the nurse in response to the rights of patients, especially those who are particularly vulnerable: the handicapped and incapacitated, the child, the elderly, to whom a more qualified service is owed. And it introduces strong rules about the social role, ecological responsibility, social presence and participation in health planning of the nurse.
subjectAbove all, the Health Codes emphasise respect for the human person, which is specified in the recognition of the special dignity of the sick person; in the condemnation of any discrimination against the patient by virtue of birth, race, sex, religion, opinion or status staffor social status; in the priority of the patient's interests over those of his or her carers; in the affirmation of the duty not to intentionally harm the sick; in the altruistic duty to provide care in the event of an emergency, epidemic or catastrophe, even at the risk of one's own life; in the endeavour to obtain the best possible use of the means that society places at the disposal of members of the health professions; in the promotion of community health. Patients, doctors and nurses must respect each other's freedom of choice, must collaborate in the search for the best quality of health care attendanceand are obliged to denounce its deficiencies.
Professional respect has a multitude of manifestations which are detailed in the Codes: mutual trust, which is best achieved through freedom of choice; abstention from imposing one's own convictions; the duty to respect the patient's privacy staffand bodily privacy, which may not be invaded gratuitously; the obligation to continue the care begun; compliance with the patient's right to receive information on the diagnosis, treatment and, as far as possible, the prognosis of the illness; obtaining the patient's informed consent for the internshipof diagnostic and therapeutic interventions of a certain risk; the obligation to certifytruthfully; the obligation to keep clinical and nursing records up to date, and to protect them from the curiosity of outsiders. The dignity of patients must be respected through the cleanliness of the hospital and the practice, its good equipment, and the punctuality with which they are treated. There is a whole deontology of the small but significant things in the daily relationship of health care workers with the sick and their families.
In addition to the classic rules on professional secrecy and its legal and ethical derogations, there are now also those arising from the complexity of the hospital medical attendance, the developmentof administrative control mechanisms and the possibilities arising from the computerisation of dataand clinical protocols.
The Code prescribes standards for the quality of medical care, both technical and human. It imposes the duty of science, of keeping up to date, through continuous study and Education. It obliges the technical and moral conditions to be in place so that it is possible to act independently and responsibly. It establishes rules about the so-called alternative practices, and obliges the members who apply them to objectively evaluate the results obtained with them, in order to discern the Degreeeffectiveness they possess. The Code logically condemns charlatanism, falsified ways of practising medicine and the associationof doctors with quacks or with those who, without being doctors, illegally practise the profession.
The norms on respect for life and human dignity are contained in a dense and heterogeneous chapter that encompasses principles of great significance. It states that there is no period of human life that does not deserve the respect of the physician. Human life is to be respected from its very beginning: the sick embryo-fetal human being is to be treated at agreementwith the same criteria as other human beings. The physician shall inform patients, upon request, about the problems related to the transmission of human life, so that they can decide with sufficient knowledgeand responsibility. The ethical dignity of physicians who refrain from performing abortion is emphasised, but the overriding of disciplinary mechanisms in the case of legal abortion is recognised. Euthanasia is condemned, but at the same time therapeutic incarceration is strongly disapproved of, and the professional and ethical dignity of palliative medicine is emphasised. Rules are given on the ethical conduct of transplantation. Physicians are prohibited from participating in acts of torture or ill-treatment and are obliged to report them. Rules are provided for balancing, where they conflict, the duties to respect the freedom of patients and the duty to preserve their lives in cases of attempted suicide, hunger strike or refusal of treatment. The rules on biomedical researchcontained in the Declaration of Helsinki of the World Medical Association associationare also enshrined.
The deontology of doctors' relations with each other is developed at some length, based on the fundamental concepts of fraternity and equality: the deferential, respectful and loyal mutual attention; the defence of the colleague who has been unjustly wronged; the refraining from derogatory criticism of a colleague; the way to settle differences of scientific or professional opinion; the obligation to denounce a colleague who violates the rules of ethics or who is incompetent; the obligation to replace a colleague who is incompetent; and the ethical nature of hierarchical relations. Ethical criteria are laid down for the formation of groups or teams of doctors and the prevention of abuse of one over the other. It also deals with the relations of doctors with members of other health professions, relations based on mutual esteem and respect, both for individuals and for the independent and competent exercise of the corresponding functions.
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 rules on the ethical conduct of the member in relation to the Medical Corporation and on the behaviour of the Officers of the Colleges and of committeein general. The obligation to participate in assemblies, elections and committees is emphasised. Professional associations have, by their very nature and by constitutional mandate, a democratic structure. They are what they want their members to be. By their indifference and abstention, they can slowly kill them. In my book of Commentaries on the Code, I have described how the lack of participation in elections leads elected officials to feel that they lack energy and moral authority; this leads to vulgar and discouraged management, which further increases the disinterest of the collegiate members. An ethic of collegial participation must be instituted.
Finally, the Code provides ethical criteria for members working in special situations: salaried doctors, civil servants and experts. It closes with rules on the ethics of professional fees. The final articleobliges the periodic review of the Code to make it more current and effective in promoting and developmentof the ethical principles that should inform professional conduct. However, the WTO Central Commission on Deontology has proposed, and the General Assembly has C, that the updateof the Code be done, rather than through the biannual revision of its text, by means of declarations on issues in need of new rules and regulationsor updating of the existing one, declarations that come into force once they have been approved by the General Assembly.
However, it is worth remembering that the Statutes and Code must be the instrument that creates professional awareness, the collective ethos. The deontological managementof the corporations cannot be limited to promulgating rules and exercising sanctioning powers: it primarily involves an educational function. Professional bodies are strongly committed to ensuring the observance and the deontological Educationof collegiality. "The O.M.C.C. - says article3 of the current Code - assumes, as one of its primary objectives, the promotion and developmentof professional ethics, devoting its preferential attention to disseminating the precepts of this Code and committing itself to ensuring compliance with them". This commitment is also echoed in article3 of the Spanish Nursing Code, which states that "...it will be the primary function of committeeGeneral and the Colleges to promote and demand compliance with the profession's ethical duties as set out in this Code".
Managers have a great deal to do in this educational role. They have to find effective and attractive ways to reveal to the membership the ethical and human richness of the ethical rules. No opportunity should be missed to publish and discuss the contents of the Code. I consider the teachingof professional ethics for students of nursing and medicine to be of particular interest.
I think that the Educationshould not be limited to students and members of schools: it should also reach out to people in the street. The Code, as I have written it, should be in the waiting rooms of doctors' surgeries and hospitals. It should be disseminated: it is, in my opinion, the best charter of patients' rights, tangible, agreed, real rights, because, as I said before, the Code is the set of commitments that the Corporation has made to society, and of which it makes public manager.
This advertisingof the Code is feared as potentially dangerous, as it is suspected that patients who are aware of the obligations of professionals may become more critical and demanding. This is true. But the responsibility to educate the public about ethics is a very accurate measure of the sincerity with which the profession, managers and members, live their ethics.
I will end with a brief reference letterto
It is an empirical fact that there have always been, are and will continue to be deficient, reprehensible professional conduct, contrary to the Deontology codified in statutes and Code. The Corporation has publicly assumed the duty to prevent and correct them. This function corresponds primarily to the Directors. The Boards of Directors of the Colleges are the competent body to initiate, by official documentor by written requestof a party, on their own initiative or by complaint, the disciplinary procedure. It should be noted, by way of parenthesis, that the judgement and sanctioning of misconduct committed by members of these Boards of Directors or of the General committee, which is also possible, is skillof the Assembly of Presidents.
The Statutes give very precise details of the proceduretrainer . This may be preceded by a discretionary reserved information. Once the body trainer has been designated, it will proceed with full respect for the rules of legal certainty, avoiding any defencelessness in the internshipof the proceedings and observing the deadlines indicated. And it is the boardDirective, or the committeeGeneral, as the case may be, that is the sanctioning body. It is never, as some think, the Deontology Commission of high schoolor, where appropriate, the Central Deontology Commission. These commissions have an advisory, technical function, which they share with the corresponding Legal advisory service, and which they exercise, limiting themselves to verifying the correctness of the files and their strict compliance with the established rules, before the boardor the committeeissue their resolution.
The Central Commission is entrusted with other functions: the technical opinion on appeals lodged by interested parties against decisions of the Colleges, the preparation of the projectCode of Ethics and Deontology, the formulation of Declarations and Guidelines on subjectethics, the assessmentfrom the deontological point of view of the draft legislation that the Government for reportprescribes to the Collegiate Medical Organisation.
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 organised nation, each profession has its own code of ethics. They may vary in size and content from one country to another, they may be public law or private regulation, they may consist of a minimal core of principles around which an exuberant and fleeting deontological rules and regulationsis built, or they may be a closed document, made to last for years. In any case, the Codes of Medical Ethics exist for the same reasons and to the same extent as the Civil Code, the Highway Code or the Commercial Code: because they respond to a profound human need. And for this reason they are to be held in high esteem and knowledge.