ACP-ASIM Section 3

The ethics of practice

The changing practice environment

Many individual persons, groups, and institutions play a role in and are affected by medical decision making in the current practice environment. Tension and competition among the interests of clinicians, insurers, patients, and institutions for available social and health care resources unavoidably influence the patient-physician relationship. Although this section of the Manual will focus specifically on the obligations of physicians in this changing context, it is essential to note that others, such as insurers and health care institutions, bear responsibility for ensuring that the fundamental ethical commitment between physicians and patients is not undermined. Insured patients and their families should try to understand the possible implications of their insurance. Concern about the changing practice environment for physicians and insured patients should not distract our attention from the problems faced by persons who lack insurance.

Physicians must promote their patients' welfare in an increasingly complex health care system. This entails forthrightly helping patients to understand clinical recommendations and to make informed choices among all appropriate care options. It includes management of the conflicts of interest and multiple commitments that arise in any practice environment, especially in an era of cost concerns. It also includes stewardship of health care resources so that finite resources can meet as many health care needs as possible, whether in the physician's office, the hospital, the nursing home, or home care.

The patient-physician relationship and the principles that govern it should be central to the delivery of care. These principles include beneficence, honesty, confidentiality, privacy, and advocacy when patients' interests may be endangered by arbitrary, unjust, or inadequately individualized institutional procedures. Health care, however, does take place in a broader context beyond the patient-physician relationship. A patient's preferences or interests may conflict with the interests or values of the physician, an institution, a payer, other members of a managed care plan who have equal claim to the same health care resources, or society.

The physician's first and primary duty is to the patient. Physicians must base their counsel to patients on the interests of the individual patient, regardless of the insurance or medical care delivery setting in which physicians find themselves. Whether financial incentives in the fee-for-service system prompt physicians to do more rather than less or managed care arrangements encourage the physician to do less rather than more (45), physicians must not allow such considerations to affect their clinical judgment or counseling on treatment options, including referrals, for the patient. The physician's professional role is to make recommendations on the basis of their medical merit and to pursue options that comport with the patient's unique background and preferences (46).

Physicians should also contribute to the responsible stewardship of health care resources. With clinical authority and discretion come responsibility. Parsimonious care that utilizes the most efficient means to diagnose a condition and treat a patient respects the need to use resources wisely and to help ensure that resources are equitably available. The recommendations of physicians to patients, in the design of practice guidelines and formularies, and to medical benefits review boards should reflect the best clinical literature. Recommendations should, as much as possible, consider data on the cost-effectiveness of different clinical approaches. When patients ask, they should be informed of the rationale that underlies the physician's recommendation.

Health plans are not obliged to underwrite approaches that patients may value but that are not justifiable on clinical or theoretical scientific grounds or that are relatively cost-ineffective compared with other therapies for the same condition or other therapies offered by the health plan for other conditions. However, the plan must have in place a fair appeals procedure. In instances of disagreement between patient and physician for any reason, the physician is obligated to explain the basis for the disagreement, to educate the patient, and to meet the patient's needs for comfort and reassurance.

The physician's duty further requires that the physician serve as the patient's agent in the health care arena as a whole. In the managed care context, for example, advocacy can operate at many levels. At the individual level, the physician advocate must pursue the necessary avenues to obtain treatment that is essential to the individual patient's care, regardless of the barriers that may discourage the physician from doing so. When barriers diminish care for a class of patients because the patients themselves are less capable of self-representation, physicians must advocate on their behalf for equitable treatment.

Patients may not understand or may fear conflicts of interests for physicians and the multiple commitments that can arise from cost-containment under managed care. Health care plans have duties to foster an ethical practice environment. They should hold physicians accountable for the quality of care and not simply for economic performance. Managed care plans should not restrict the information or counsel that physicians may give patients.

Although the physician must provide information to the patient about all appropriate care and referral options, the health plan must disclose all relevant information about benefits, including any restrictions, and about financial incentives that might negatively affect patient access to care (47).

When patients enroll in insurance plans, they receive a great deal of information on rules governing benefits and reimbursement. Patients should familiarize themselves with this information. Physicians cannot and should not be expected to advise patients on the particulars of individual insurance contracts and arrangements. Patients should, however, expect their physicians to honor the rules of the insurer unless doing so would endanger the patient's health. Physicians should not collaborate with a patient or engage in efforts to defraud the insurer.

Financial arrangements

As professionals dedicated to serving the sick, all physicians should do their fair share to provide services to uninsured and underinsured persons.

Financial relationships between patients and physicians vary from fee-for-service to government contractual arrangements and prepaid insurance. Financial arrangements and expectations should be clearly established in advance. Fees for physician services should accurately reflect the services provided. Physicians should be mindful that forgiving copayment may constitute fraud.

When physicians elect to offer professional courtesy to a colleague, physicians and patients should function without feelings of constraints on time or resources and without shortcut approaches. Colleague-patients who initiate questions in informal settings put the treating physician in a less-than-ideal position to provide optimal care. Both parties should avoid this inappropriate practice.

Financial Conflicts of Interest

The physician must seek to ensure that the medically appropriate level of care takes primacy over financial considerations imposed by the physician's own practice, investments, or financial arrangements. Trust in the profession is undermined when there is even the appearance of impropriety.

Potential influences on clinical judgment cover a wide range and include financial incentives inherent in the practice environment (such as incentives to overutilize in the fee-for-service setting or underutilize in the managed care setting) (48), drug industry gifts, and business arrangements involving referrals. Physicians must be conscious of all potential influences and their actions should be guided by appropriate utilization, not by other factors. A fee paid to one physician by another for the referral of a patient, historically known as fee-splitting, is unethical. It is also unethical for a physician to receive a commission or a kickback from anyone, including a company that manufactures or sells medical instruments or medications that are used in the care of the physician's patients. Physicians should not refer patients to an outside facility in which they have invested and at which they do not directly provide care (49).

Physicians may, however, invest in or own health care facilities when capital funding and necessary services are provided that would otherwise not be made available. In such situations, in addition to disclosing these interests to patients, safeguards must be established against abuse, impropriety, or the appearance of impropriety (49).

Physicians may invest in publicly traded securities. However, care must be taken to avoid investment decisions that may create a conflict of interest or the perception of a conflict of interest.

The acceptance of individual gifts, hospitality, trips, and subsidies of all types from the health care industry by an individual physician is strongly discouraged. The acceptance of even small gifts has been documented to affect clinical judgment and heightens the perception (as well as the reality) of a conflict of interest (50). While following the Royal College of Physicians' guideline, "Would I be willing to have this arrangement generally known?" (51), physicians should also ask, "What would the public or my patients think of this arrangement?"

Physicians must critically evaluate medical information provided by detail persons, advertisements, or industry-sponsored educational programs. Physicians with ties to a particular company should disclose their interests when speaking or writing about a company product. Most journal editors require that authors and peer reviewers disclose any potential conflicts of interest. Editors themselves should be free from conflicts of interest concerning particular papers.

Advertising

Advertising by physicians or health care institutions is unethical when it contains statements that are unsubstantiated,false, deceptive, or misleading, including statements that mislead by omitting necessary information.