Ethics in Health Services Management Fourth Edition By Kurt Darr, J.D., Sc.D. FACHE

Excerpted from the Introduction of Ethics in Health Services Management, Fourth Edition, by Kurt Darr, J.D., Sc.D., FACHE.

Copyright © 2005 by Health Professions Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.

Introduction

Two themes underlie Ethics in Health Services Management: the autonomy, primacy, and protection of the patient* and the health services manager as moral agent and leader of the health services organization.

This book is intended to assist health services managers develop a personal ethic and gain an understanding of administrative and biomedical ethical issues, and it suggests a methodology for solving the problems that these issues raise. The emphasis is on normative ethics (what should be done). Some attention is paid to descriptive ethics (what is actually done) and metaethics (study of ethical systems) because they assist in understanding normative ethics. The theories of ethical relativism and ethical nihilism are not considered. Ethical relativism holds that there are no absolutes and that all answers to ethical questions are morally correct, depending on circumstances and culture. Nihilists consider no choice correct. These theories neither help managers meet the needs of patients, staff, and organizations nor aid them in resolving ethical problems. Furthermore, ethical relativism and nihilism do not help the manager formulate and reconsider a personal ethic.

For the health services manager, a personal ethic is a moral framework for relationships with employees, patients, organization, and community. In these relationships, the manager is not, and cannot be, a morally neutral technocrat. The manager is a moral agent — someone who morally affects and is morally affected by what is done or not done. This places special emphasis on misfeasance, malfeasance, and nonfeasance. Management’s decisions are not value free; in a moral sense, they affect the organization’s environment and are touched by them.

The patient relies on the health services organization and its staff to perform services unique in society. Managers’ responsibilities to patients take precedence over their fiduciary duty to their organizations. Protecting the patient is more than providing safe surroundings and competent staff. It is more than licensure, accreditation, and compliance. It is more than a surplus at the end of the fiscal year. The manager is the organization’s conscience. This responsibility is exemplified by the organization’s willingness, prompted and led by management, to recognize the inherent human dignity of the patient and do so through effective programs that make this recognition a reality. It means using effective consent forms and procedures and ascertaining that all who have contact with patients are qualified and work for the patient’s good. It means not considering patients as adversaries and not deserting them should something go wrong in the care process. An organization that has done its best can face the consequences of an error honestly, mitigate the injury, and find a fair solution. The loop is closed when management determines the cause of the problem, prevents or minimizes the probability of its recurrence, and strives to continuously improve quality. At times justice requires a decision process that prospectively includes the criteria of cost–benefit analysis and utilitarianism (the greatest good for the greatest number). Even here, the organization recognizes the dignity and worth of people as yet unserved or only partially served.

How does the health services organization develop and implement a “just” policy? How does it strive to treat patients as equals and work to serve their interests? Implementation of a just policy begins with the organizational philosophy,** which should explicitly state the nature of the relationship between patient and organization. This philosophy should reflect the view that the patient is autonomous and is entitled to be treated with respect and dignity. In a sense, there is a contract — an implicit but verifiable understanding between patient and provider, grounded in mutual trust and confidence. It recognizes that whenever possible, patients retain control of their lives.

Once enunciated, the organization’s philosophy must be reflected in all derivative mission and vision statements, policies, procedures, and rules, but especially in relationships with patients and community. If not operationalized, the organization and its managers will be judged cynical about themselves and those they serve. This cynicism is easily recognized by staff and, in turn, will be reflected in staff’s relationship with patients. Staff may not succumb to the negative implications of this inconsistency, but it will be an underlying, festering incongruity nonetheless.

A major participant in developing and maintaining the appropriate relationship with patients is the physician,*** necessarily a primary actor. Physicians must respect decisions made by a patient or an appropriate proxy. The roles of physician and organization are complementary, but the organization remains morally (ethically) accountable for the physician’s activities.

CONCERN ABOUT ETHICS

Ethics is a word used frequently in health care. Questions are asked daily about making the ethically right choice. Seemingly straightforward and value-free management decisions have ethical implications for patients, staff, organization, community, and society. Many decisions that cause ethical dilemmas are the result of the continuing revolution in biology and technology. Fiscal constraints, competition, and new means of delivering services exacerbate existing ethical problems and raise new ones. Beyond these causes is an enhanced level of awareness resulting from the research and writing of ethicists and the work of government commissions on experimentation and bioethics.

Ethical dilemmas occur when decision makers are drawn in two directions by competing courses of action that are based on differing moral frameworks, varying or inconsistent elements of the organizational philosophy, conflicting duties or moral principles, or managers who have an ill-defined sense of right and wrong. For example, staff members may be asked to follow rules they consider inappropriate or unjust, or two moral principles may conflict with one another. A nurse’s duty to preserve life clashes with the patient’s wishes not to be kept alive artificially. Another source of ethical dilemmas is the existence of two compelling, ethically defensible positions on an issue such as the possible conception of a genetically defective infant. Required genetic screening and counseling for people at risk conflict with individual autonomy. Conclusions vary when decision makers put different weight on various principles, such as personal liberty or privacy competing with societal interests and economic considerations. Ethical decisions are also affected by politics, laws, and regulations. Reasonable persons could differ as to the ethically “right” result on some issues. For virtually all ethical issues, however, one answer almost always emerges as morally superior. Ethical problems are often characterized as dilemmas because that emphasizes the difficulty of finding the morally best solution. Solving ethical problems may be demanding, but few are properly labeled dilemmas.

Are laws and regulations the problem or the solution? Some perceive that ethical problems arise because laws or regulations fail to guide actions. Others perceive that laws force organizations and managers to act in ways that cause ethical problems. Depending on the issue and facts, both views may have merit. Even when there are external rules, decision makers in organizations must decide when the rules apply, how they are interpreted, and whether to obey them. In fact, by designating and clarifying rules, there is less middle ground, the ethical problems are starker, and solving them may be more difficult. Some people may ignore the rules and apply a personal ethic. Others will apply rules dogmatically, choosing not to think about the underlying philosophy or resulting ethical issues. Conversely, some ethical problems occur because no external rules assist decision makers. For others, there is no consensus as to what the rules should be. A further complication is that some ethical problems have developed more quickly than the ability of the health services field or society to solve them.

ETHICS DEFINED

Defining ethics is difficult because it can have several meanings. For philosophers, ethics is the formal study of morality. Sociologists see ethics as the mores, customs, and behavior of a culture. For physicians, ethics means meeting the expectations of profession and society and interacting with patients in certain ways. Health services managers should consider ethics a special charge and a responsibility to patients, organization and staff, to themselves and profession, and, ultimately but less directly, to society. Managers are confronted with the normative question “What ought I to do?”

Distinctions often blur, but ethical problems may be divided into administrative and biomedical. Biomedical ethical problems involve individual patients or groups of patients in their relationships with one another or with providers and organizations. Depending on the issue, the manager is involved less directly in biomedical ethical problems. Beyond biomedical ethical problems, some of which become dilemmas that receive great media attention, is the need to identify and solve management problems with ethical dimensions. Administrative ethical problems involve manager and profession, organization, patients, and society. Administrative ethical issues less frequently involve competing, ethically defensible choices. Solving these problems is usually a matter of recognition and resolve — doing what is morally right.

SOURCES OF LAW

The relationship between law and ethics (morality) is dynamic. Thus, it is useful to begin a book about ethics by briefly reviewing development of law. Every organized society has a code or system of laws that distinguishes acceptable behavior from unacceptable behavior and establishes penalties for transgressors. Law may be defined as a system of principles and rules of human conduct prescribed or recognized by a supreme authority. This definition includes criminal and civil law. In contrast, ethics is the study of standards of moral judgment and conduct. For individuals this is the personal ethic. For profession it is the guiding system or code of ethics.

The moral underpinnings in criminal law are especially clear in reflecting society’s sense of right and wrong, or its ethics (morality). In a democratic society laws are said to derive from and reflect the views of justice and fairness held by the majority. This is less true in civil law, which governs relations among individuals and includes torts and contracts. The common law tradition of the United States means that a great deal of law is based on the precedents of judicial opinions. Civil law emphasizes predictability, stability, and property rights.

In a democracy, laws are thought to reflect the moral values of most people, but substantial minorities may hold contrary views and consider a law or government action so unjust that they risk the penalties of breaking it. An historical example is the 18th Amendment to the U.S. Constitution. Adopted in 1919, it prohibited manufacture, sale, or transportation of intoxicating liquors. Violation was widespread until the amendment’s repeal in 1933. Contemporary examples are draft resistance during the Vietnam war, common disregard of roadway speed limits, and marijuana use.

Some cultures regarded the law as a gift from the gods. Plato’s Republic postulated the ideal state as one based on rational order and ruled by philosopher-kings. Plato considered written law a regrettable oversimplification that could not take into account the differences and conditions in parties and situations involved in legal disputes. He believed that it was best to have a philosopher apply an unwritten law. His own experience proved this theory impossible, and he accepted a written law administered without regard to the circumstances of the individuals involved.^{1, 2} This concept of a rule of law, not of men, became established in Anglo-American legal tradition. However, because of the absurd results that can occur when civil law is applied without considering the situations of the parties, the concept of unwritten law preferred by Plato was continued, but in a limited manner. Parallel court systems developed in the common law; civil actions could be brought in either. Some states have courts of equity that hear cases in which fairness is the primary concern; most, however, have merged law and equity into one court system.

Because of the link between societal views of right and wrong and the law, morality is reflected in all types of law, whether formal or nonformal. A leading jurisprudent, Edgar Bodenheimer, identified formal sources of law as constitutions, statutes, executive orders, administrative regulations, ordinances, charters and bylaws of autonomous or semiautonomous bodies, treaties, and judicial precedents. Nonformal sources of law have not received an authoritative, or at least articulated, formulation and embodiment in a formalized legal document. These sources include standards of justice, principles of reason and consideration of the nature of things (natura rerum), equity for individuals, public policies, moral convictions, social trends, and customary law.

Bodenheimer’s inclusion of the charters and bylaws of autonomous and semiautonomous bodies in the list of formal sources of law has significance for health services management. Such documents include the articles of incorporation and bylaws of the organization. General references to the organizational philosophy and mission may be included in both but will appear in expanded form in other documents. These are key. Medical staff bylaws and rules and regulations also reflect the organizational philosophy and mission and must be consistent with them.

In addition to their importance in reflecting the philosophy and mission, the charter and bylaws are an organization’s basic laws. Persons affected by the organization — employees, physicians, patients — look to them for guidance. Some formal laws, such as the medical staff bylaws, detail the rights and obligations of physicians. Should a legal controversy develop, courts and other reviewing bodies look to these documents as sources of formal law.

Bodenheimer’s definition of formal law is broad enough to include professional codes of ethics. A code can be effectively implemented only when interpreted and enforced. Such activities guide a code’s application and related decision making, give it dynamism and life, and ensure the important virtues of consistency and predictability.

* To ease reading, patient is used to describe anyone served by a health services organization.

** Organizational philosophy is used as a generic concept to include values, core values, shared values, ministry, healing ministry, philosophy, or similar terms used to convey the philosophical framework in which services are delivered.

*** To ease reading, physician includes medical doctors and other practitioners of the medical and healing arts licensed to independently treat patients (e.g., dentists, nurse midwives, clinical psychologists, podiatrists, chiropractors). Such persons are often known as licensed independent practitioners (LIPs).

Notes

1. Edgar Bodenheimer. (1974). Jurisprudence: The philosophy and method of the law (p. 6). Cambridge, MA: Harvard University Press.

2. A useful discussion of Plato’s political philosophy is found in Jeremy Waldron. (1995). What Plato would allow. In Ian Shapiro & Judith Wagner DeCew (Eds.), Theory and practice: Nomos XXXVII (pp. 138–178). New York: New York University Press.