1. Ethical Challenges of Impaired Healthcare Professionals for their Patients, Colleagues, and Organizational Leadership Laurence B. McCullough, Ph.D. Professor of Medicine and Medical Ethics Center for Medical Ethics and Health Policy Baylor College of Medicine Houston, Texas

2. Objectives -1 Identify historical development of the ethical concept of physician as fiduciary of the patient Identify three components of the ethical concept of the physician and healthcare professional as fiduciary of the patient

3. Objectives -2 Identify clinical implications of the ethical concept of the physician and healthcare professional as fiduciary of the patient Identify criteria, from the history of medical ethics, for judging a colleague to be impaired Identify ethical obligations of impaired physicians Identify a preventive ethics approach to ethical challenges of impaired physicians Identify the role of organizational culture in undertaking such a preventive ethics approach

4. Physician as Fiduciary of the Patient -1 Tension in the history of medicine between entrepreneurial self-interest and a life of service to patients Resolved in 18 th -century medical ethics in favor of a life of service Concept of physician as fiduciary developed in late 18 th and early 19 th century British medical ethics John Gregory, M.D. (1724-1773) in Scotland Thomas Percival, M.D. (1740-1803) in England

5. Physician as Fiduciary of the Patient -2 1. The physician should be competent Base clinical judgment, decision making, and behavior on reliable concepts of health and disease Base clinical judgment, decision making, and behavior on evidence Fiduciary responsibility includes ethical obligation to conform clinical practice to EBM standards Cultivate the virtue of diffidence: an habitual indifference to one’s scientific and clinical beliefs and practices and willingness to change based on EBM

6. Physician as Fiduciary of the Patient -3 2. The physician should use his or her clinical knowledge and skills primarily to benefit the patient The protection and promotion of the patient’s health- related interests should be the physician’s primary concern and commitment This calls for a life of service This is a medieval idea that is perhaps in tension with modern culture and is certainly in tension with contemporary American popular culture with its emphasis on pursuit of self-interest (which is not the concept of happiness in the Declaration of Independence)

7. Physician as Fiduciary of the Patient -4 Corollary: The physician should make pursuit of self-interest a systematically secondary consideration Fiduciary responsibility includes the virtue of self- sacrifice Setting limits on self-sacrifice is a central ethical challenge of fiduciary professionalism Obligations in one’s life to others than one’s patients, especially family Distinguish legitimate from mere self-interest

8. Physician as Fiduciary of the Patient -5 3. The physician should maintain, strengthen, and pass on to future physicians and patients medicine as a public trust Not a merchant guild primarily concerned to protect the economic, political, and other interests of its members

9. Physician as Fiduciary of the Patient -6 What is the ethical status of income and job security? A license or privilege to practice, not a right The moral authority of that privilege is a function of commitment to fiduciary responsibility Legitimate vs. mere self-interest in income and job security Even as a legitimate self-interest it should never take precedence over primary commitment to protecting and promoting the health-related interests of patients; otherwise fiduciary professionalism and public trust are destroyed from within

10. Historical Reflections on Impaired Physicians -1 John Gregory, Lectures on the Duties and Qualifications of a Physician (1772) Temperance and sobriety are virtues peculiarly required in a physician. In the course of an extensive practice, difficult cases frequently occur, which demand the most vigorous assertion of memory and judgment. I have heard it said of some eminent physicians, that they prescribed as justly when intoxicated as when sober.

11. Historical Reflections on Impaired Physicians -2 John Gregory (continued) If there was any truth in this report, it contained a severe reflection against their abilities in their profession. It shewed that they practised by rote, or prescribed for some of the more obvious symptoms, without attending to those nice peculiar circumstances, a knowledge of which constitutes the great difference between a physician who has genius and one who has none.

12. Historical Reflections on Impaired Physicians -3 John Gregory (continued) Intoxication implies a defect in the memory and judgment; it implies a confusion of ideas, perplexity and unsteadiness; and must therefore unfit a man for every business that requires the lively and vigorous use of his understanding.

13. Historical Reflections on Impaired Physicians -4 Thomas Percival, Medical Ethics … (1803) The commencement of that period of senescence, when it becomes incumbent on a Physician to decline the offices of his profession, is not easy to ascertain; and the decision on so nice a point must be left to the moral decision of the individual. … in the ordinary course of nature the bodily and mental vigour must be expected to decay progressively, though perhaps slowly, after the meridian of life is past.

14. Historical Reflections on Impaired Physicians -5 Thomas Percival (continued) As age advances, therefore, a Physician should from time to time scrutinize impartially the state of his faculties, that he may determine bona fide the precise degree in which he is qualified to execute the active and multifarious offices of his profession; and whenever he becomes conscious that his memory presents to him with faintness those analogies on which Medical reasoning and the treatment of diseases are founded, that diffidence of the measures to be pursued perplexes his judgment, that, from a deficiency of the acuteness of his senses

15. Historical Reflections on Impaired Physicians -6 Thomas Percival (continued) he finds himself less able to distinguish signs or to prognosticate events, he should at once resolve (though others perceive not the changes which have taken place), to sacrifice every consideration of fame or fortune, and to retire from the engagements of business.

16. Historical Reflections on Impaired Physicians -7 Thomas Percival (continued) To the Surgeon under similar circumstances this rule of conduct is still more necessary; for the energy of the understanding often subsists much longer than the quickness of eye-sight, delicacy of touch, and steadiness of hand, which are essential to the skilful performance of operations.

17. Historical Reflections on Impaired Physicians -8 Thomas Percival (continued) Let both the Physician and Surgeon never forget that their professions are public trusts, properly rendered lucrative whilst they fulfil them, but which they are bound by honour and probity to relinquish as soon as they find themselves unequal to their adequate and faithful execution …

18. Criteria for Judging a Colleague to be Impaired -1 “Vigorous assertion of memory and judgment” Attending to more than the “obvious symptoms” but also to “those peculiar circumstances,” the nuances of history, physical, exams, labs Clarity of thought and expression “Lively and vigorous use of understanding”

19. Criteria for Judging a Colleague to be Impaired -2 Mental vigour Acute senses Distinguish “signs and prognostic events” “Quickness of eye-sight” “Delicacy of touch” “Steadiness of hand”

20. Ethical Obligations of Impaired Physicians Maintaining scientific and clinical competence as bulwark of protection of patients’ health- related interests Maintaining the profession of medicine as a public trust is a component obligation of fiduciary responsibility Diffidence and openness to evaluation and criticism create obligation to accept fair investigation and justified sanctions Willingness to sacrifice “every consideration of fame and fortune” when irreversibly impaired

21. Preventive Ethics Approach -1 Beware hesitation based on guild mentality Fiduciary responsibility to protect patients trumps guild self-interest in protecting members of the profession Distinguish single incidents from patterns of incidents Acute, reversible impairments Chronic, potentially reversible impairments Chronic irreversible impairments

22. Preventive Ethics Approach -2 Do not delay in bringing concern to possibly impaired colleague Start discussion with reminder of fiduciary responsibility and the obligation to maintain scientific and clinical competence and the profession of medicine as a public trust Do not accept refusal to assume this obligation, especially when patients are imperiled and/or impairment is well documented

23. Preventive Ethics and Organizational Culture -1 Fiduciary responsibility depends vitally on self- regulation of profession and of health care organizations Maintenance of fiduciary professionalism should be core mission value Organizational policy and practice should have zero tolerance for retaliation against those who raise well founded concerns about impaired physicians Scrupulously fair procedures for investigations and loss of privileges/licensure

24. Preventive Ethics and Organizational Culture -2 One strike and you’re out? How many patients is it ethically permissible to put at risk to reach reliable judgment that impairment is irreversible? How should this question be answered in the context of the hazards of space flight? Short missions Long missions Indemnifying physicians who become impaired as a result of occupational diseases e.g., HIV-related dementia

25. References Gregory J. Lectures on the Duties and Qualifications of a Physician. London: W. Strahan and T. Cadell, 1772. In McCullough LB, ed. John Gregory’s Writings on Medical Ethics and Philosophy of Medicine. Dordrecht, Netherlands: Kluwer Academic Publishers, 1998: 161-248. Percival T. Medical Ethics, or a Code of Institutes and Precepts, Adapted to the Professional Conduct of Physicians and Surgeons. London: Johnson & Bickerstaff, 1803.

26. Ethical Challenges of Impaired Healthcare Professionals for their Patients, Colleagues, and Organizational Leadership Laurence B. McCullough, Ph.D. Professor of Medicine and Medical Ethics Center for Medical Ethics and Health Policy Baylor College of Medicine Houston, Texas