Declaration on the internal boundaries of professional practice

Foundation: Comisión Central de Deontología de la Organización Médica Colegial Española.
sourceSpanish: Comisión Central de Deontología de la Organización Médica Colegial Española (Central Commission of Deontology of the Spanish Medical Association).
language original: Spanish.
Approval: Not approved by the General Assembly.
Published, as an open document on work, in WTO 56, February 1998.
Copyright: No.
Checked on 16 May 2002.

Declaration of the WTO Central Commission on Deontology on the internal boundaries of professional practice. Boundary conflicts between general practitioners and specialists and between specialists and general practitioners. Ethical and deontological principles for resolving them.

Introduction

1. In real life, as well as in consultations with or complaints to the Central Deontology Commission, a relatively new problem arises very frequently: certain groups of medical specialists claim for themselves the exclusive right to perform certain professional interventions. For example, forensic medicine specialists consider that only they have the exclusive right to evaluation of bodily injury, radiologists want to be the sole experts in the different techniques of diagnostic imaging, anatomopathologists claim a monopoly on diagnostic cytology. These conflicts over exclusive skill territories do not only occur between more or less neighbouring specialities, but also between generalists and specialists.

2. In other words, there are groups of professionals who, invoking the specialization program of which they are holders, claim exclusivity in the application of certain new techniques, the performance of certain areas of the body, the execution of certain functions or even the use of specific titles or designations. And, consequently, they consider that the conduct of other doctors who carry out the interventions for which they claim this exclusive skill could constitute a lack of intra-professional intrusiveness, which should be repressed.

3. There are factors in today's medicine that favour the production of these border conflicts, which occur with similar intensity in private and public medicine. These include the presence of a large contingent of doctors who have been fighting for years for recognition of their specialised qualifications, which they consider they have obtained de facto after many years at work in public institutions, but have not been granted de jure; the excessive medical demography, aggravated by the presence of biologists, chemists, psychologists and pharmacists competing for jobs and functions that used to be carried out by doctors; the growing tendency towards sub-specialisation, conditioned by the cognitive and instrumental complexity of today's specialties; the proliferation of increasingly expensive, sophisticated and short-lived technologies that require intensive performance; or the accentuation of a market mentality that seeks to impose economic criteria on professional practice and on management health.

4. As a relatively new and very complex phenomenon, there is as yet no legal regulation to deal with it. Nor has a medical deontology been developed at purpose. Precisely for this reason, it seems important to take the first steps towards a correct approach to the conflicts that are beginning to arise, and to propose some criteria for channelling their possible solution.

5. Throughout many sessions of the Central Ethics Commission, the topic has been the subject of study and discussion by all the members of the Commission. Doctors Aizpiri and Simón Arnanz, as initial rapporteurs, collected and evaluated the scarce and scattered deontological and legal materials that exist on topic, which are summarised below. Dr. Muñoz added very revealing medico-legal considerations. Dr. Ríos, Dr. Simón framework and Dr. Viñas made contributions that helped to bring the difficult problem towards a better definition. Finally, Dr. Herranz, as the new speaker, prepared the final document.

6. This is followed by data of the legislation, followed by some legal considerations and the deontological criteria applicable to the case. It ends with some tentative conclusions, which at present represent the opinion of the Central Ethics Commission on subject.

data of the legislation

7. The legal regulations governing the practice of medicine are silent on the existence of boundaries circumscribing the practice of the medical profession between the various specialties. They certainly state that the legitimate possession of the degree scroll of graduate in Medicine qualifies for the internship of Medicine, without imposing any limitation whatsoever. This is stated in the Decree of 7 July 1944 on the general organisation of the Schools of Medicine. And it is reiterated, in its preamble, by the Law on teaching, Titles and Practice of Medical Specialities of 20 July 1955, when it states that "the degree scroll of graduate in Medicine qualifies for the total internship professional practice of Medicine, without the precepts of this Law being intended to diminish its recognised integrity".

8. The General Statutes of the Spanish Medical Association (Royal Decree 1018/1980) impose the obligation to be a member of a medical association in order to practise medicine in genere, but do not impose any limitations on this practice.

9. Royal Decree 127/1984 regulating the specialised medical training and the awarding of the degree scroll of specialist doctor does not draw any boundaries between the numerous medical specialities it recognises.

10. The General Health Law is silent on this issue.

11. agreement In the opinion of some, article 403 of the New Penal Code, which came into force on 26 May 1996, seems to suggest the possible existence of a crime of intra-professional intrusion, when it states: "Anyone who carries out acts proper to a profession without possessing the corresponding academic degree scroll issued or recognised in Spain in accordance with current legislation, shall be sentenced to a fine of six to twelve months. If the professional activity carried out requires an official degree scroll that accredits the necessary training and legally authorises the exercise thereof, and the offender is not in possession of the said degree scroll, a fine of three to five months shall be imposed. If the guilty party, in addition, publicly claims to be a professional covered by the aforementioned degree scroll , he/she shall be sentenced to six months to two years' imprisonment.

12. This article is an indeterminate text, which needs to be interpreted by the doctrinal research and by jurisprudence in order to acquire the necessary precision. The former already offers some contradictory conclusions. It can be assumed that the second will be neither abundant nor prompt, since it is likely that, as the offence of professional intrusion is a minor offence, it will still take a few years for the Supreme Court to reach an adequate issue of litigation to create the necessary jurisprudence.

Legal considerations

13. The matter, although not regulated by legislative norms nor explained by the relevant case law, is nevertheless susceptible of being analysed according to the criteria of legal doctrine. How to legally evaluate a medical professional who performs a medical act which, so to speak, is foreign to area of his or her ordinary practice, and invades a territory that is supposed to belong to another recognised medical specialization program ?

14 Such a status puts the relationship between skill and degree program in tension. If the doctor ventures into territory that is, in principle, unfamiliar to him and if his performance turns out to be unfortunate or deficient, he could be judged either for lack of degree scroll or for lack of skill. And in either case, his deficient performance could be attributed to intentional action, reckless or negligent action, or merely risky action.

15. The lack of degree scroll or the lack of skill lead to different legal situations. Whoever exercises with degree scroll but causes, without intending to do so, a damage, is the author of a conduct that can be imprudent or negligent: he is the author of a culpable offence for lack of due skill . In a way, the degree scroll is demanded by the State as a remote guarantee of skill. The State takes for granted the skill of whoever is in possession of the legitimate degree scroll : it does not inquire further into it. The one who has degree scroll can cause damage through recklessness or negligence, for example, when he takes excessive risks or lacks the required updating of his knowledge or skills. But he or she is immune from the offence of intrusiveness.

16. But the status is very different when the damage is caused by someone who lacks degree program, even if they were competent. The State, as guarantor, is not liable for him, as it lacks the legitimate degree scroll . Whoever practices without possessing the required degree scroll is guilty of wilful, intentional conduct: the criminal offence of intrusiveness.

17. The status becomes more complicated following the entry into force of the new Penal Code entrance . As mentioned above, when dealing with Art. 403, the possibility arises of interpreting it as including, and pursuing, an alleged new criminal offence of "intraprofessional intrusion".

Professional aspects

18. From a professional point of view, the legislative and deontological silence on the existence and establishment of limits between medical specialities appears logical, as these are based on such heterogeneous criteria that any rational and consistent delimitation of their respective particular territories is impossible. Many specialties have arisen from anatomical-clinical concepts, which assign diseases to alterations of the different organs, apparatuses and systems: this is the case, for example, of neurology, cardiology, gynaecology, nephrology and many others. Other times, the defining marks of specialization program are pathophysiological, as is the case with medical oncology, allergology or immunology. Other specialties are identified by their technical-instrumental nature, as is the case with Radiology or Biochemistry Clinical. Other specialities are determined by the age of the patients: this is the case of Geriatrics or Paediatrics. In some specialties, criteria from the generalist tradition of the past survive: General Medicine or Family and Community Medicine, General Surgery, Internal Medicine. Finally, there are specialties that result from the combination of other specialties, as in the case of paediatric surgery.

19. Although the problem arises, admittedly with varying intensity, both in the private internship of the profession and in public medicine, it is historically influenced by the tradition, originating many years ago in public health institutions, of the strict compartmentalisation of the work of salaried doctors. Like employer, Insalud has been assigning doctors a very strict distribution of work, which over time has created the impression that the work territories of doctors and specialities are well delimited. However, Insalud's policy has not been guided or inspired by ethical criteria, but only by decisions of rationalisation and distribution of work.

20. As has been said, there is no precise statutory provision on the subject in Spain rules and regulations . Neither the WTO General Statutes nor the Code of Medical Ethics and Deontology say anything specific. There are, however, some deontological and statutory rules that indirectly shed some light on the problem. One is the duty of colleagues to live together peacefully and to respect each other in the exercise of their profession manager . The General Statutes of the WTO include, among the rights of members, the right "not to be restricted in the exercise of the profession, provided that such exercise is carried out in accordance with established professional ethics" (Art. 42.e).

21. What are these deontological channels? Decisively, the skill, i.e., the good knowledge together with the appropriate skill. The doctor, says Art. 21.2 of the Code of Medical Ethics and Deontology, must abstain from actions that exceed his or her capacity and, in such a case, will propose that another competent colleague be called upon at subject.

22. In principle, every physician should be able to perform the acts for which he/she has acquired the necessary training and the necessary skill , whether this has been achieved on his/her own initiative, or by following institutional programmes, or as result of his/her first training at the respective specialization program , or by following serious and efficient programmes of continued Education .

23. If there are common contents in the programmes of training of two or more specialities, it does not seem fair to prohibit or make it difficult for those who have been duly trained and can demonstrate their skill, to exercise the corresponding interventions.

Conclusions

24. The Central Deontology Commission considers that, from an ethical point of view, the decisive criterion for professional practice manager is the possession of the appropriate skill to carry out the corresponding medical intervention. The usual and customary procedure for the acquisition and maintenance of the appropriate skill is the following of the appropriate initial and ongoing training programmes for each specialization program.

25. Every physician is obliged to be well aware of the real limits of his skill. Acting within these limits, he will have no problems if he combines good judgement and technical skill with a humane and respectful attention towards his patients and colleagues. But he cannot ignore that he would expose himself to a serious professional risk if, because he has acted in areas where it would not be easy for him to demonstrate that he has acquired the necessary expertise or to justify that he has the necessary skill, unfortunate consequences would follow. There is, in general, a close relationship between the frequency with which an intervention is practised and the quality of care provided.

26. A physician may never exceed the limits of his or her capacity without the immediate financial aid of a competent colleague available. This applies not only to the period of the first specialised training , but is a permanent, universal ethical mandate.

27. There is no deontological basis for the idea that there is an exclusive or territorial property right of specialists over certain organ systems or over certain preventive, diagnostic or rehabilitative practices. To vaccinate a child, perform a diagnostic ultrasound, remove an earwax blockage, examine a fundus, attend at a normal birth, or perform allergy tests, it is not necessary to be a specialist in paediatrics, radiology, otorhinolaryngology, ophthalmology, obstetrics and gynaecology, or allergology. A good general practitioner with any of these skills could not be prevented from exercising them for the benefit of his or her patients.

28. The degree scroll as a specialist confers the rights specified by law, but does not in itself, and in an indefinite, automatic and perpetual manner, grant the necessary skill. The medical specialist is ethically obliged to keep up to date, not to exceed his or her capacity, not to make mistakes due to lack of preparation or overconfidence. His degree scroll does not confer immunity from negligence or poor judgement. Nor does it confer a right of exclusive exploitation of certain medical interventions or a monopoly to intervene in certain organic territories.

29. According to article 37.3 of the Code of Medical Ethics and Deontology, a doctor who does not have the degree scroll of a specialization program is forbidden to advertise as if he/she were such a specialist, nor is he/she allowed to disseminate advertising that could in any way create confusion in the public about his/her professional qualification.

30. The doctor who, without having the degree scroll of specialist, plans to carry out an intervention that can be considered typical of such specialization program, is obliged to consider whether he really has the skill to carry it out and whether he is prepared to assume full responsibility for the consequences of his action. He is obliged to communicate this to his patient, as this is part of the information that is due to him. He is obliged before his high school, and eventually before the courts of law, to give a reasonable justification for his decision, and to demonstrate with convincing evidence that he has the skill necessary to carry it out: no more, but no less, than is required of a competent and conscientious physician.

31. The physician must have the freedom to prescribe, a freedom that is essential if he is to provide, without extraneous interference, the best possible service to his patient. But he must also possess a strong sense of responsibility that leads him to recognise and accept the consequences of his free actions. One of the most fundamental aspects of this sense of professional responsibility, particularly necessary today in an environment of professional malpractice litigation internship , is the lucid recognition of the limits of one's own capacity and skill.

32. The Central Ethics Commission believes that this document should be widely disseminated. It should be sent, in the first instance and for general circulation knowledge, to all Medical Associations and to the medical professional press. But it should also be sent to the scientific societies of medical specialties and to associations and individuals interested in medical ethics and law, so that it can be widely discussed by those who can provide constructive criticism, with the aim of purpose .

Madrid, 3 and 4 October 1997.