Mary Varney Rorty






In Search of Common Ground:
An Ethics for the New Medicine




For the last three decades there has been considerable discussion of ethics in health care. Physicians and nurses have long had professional codes that govern their practice and have traditionally been a major source of confidence and trust in medical treatment. Starting in the '70s considerable attention has been paid to the protection of patients as research subjects, expanding to attention to attention to other ethical issues which arise in patient care: the right to informed consent to all medical treatment, including the right to refuse treatment; the right to privacy and to the confidentiality of medical information, to disclosure of relevant medical information, protection of vulnerable subjects, and so on.

Since 1993 hospitals have been required as a condition of accreditation to have an ethics process or committee to address ethical issues which arise at the bedside. Hospital administrators too have professional organizations with associated codes which resemble in many respects the Hippocratic codes of the medical professions. (I'm thinking here of the code of ethics of the American College of Healthcare Executives, whose 1995 code of ethics reminds members that "the fundamental objectives of the healthcare management profession are to enhance overall quality of life, dignity and wellbeing of every individual needing healthcare services, and to create a more equitable, accessible, effective and efficient healthcare system." It speaks later of evaluating the possible outcomes of administrative decisions for their impact upon rights, interests and prerogatives of individual patients and communities.)

Hospitals, then, and the individual providers who work in and with them, have constituted a relatively integrated Hippocratic network. They share the common ethical imperative of providing the best possible care at a reasonable cost to the patients they serve. In the decades in which health professionals had the greatest decision making power and agency within hospitals, there were few countervailing forces to the professional ethics that determined hospital policies and informed the ethical climate of those institutions.

That situation as we all well know (and has been endlessly discussed) is changing. One of the important changes in healthcare in the last decade has been the entry into healthcare in large numbers of organizations that have grown up outside the traditional Hippocratic social and moral matrix; organizations which may operate on different rationales - the new administrative intermediaries which don't deliver services, but exist primarily to manage costs; and insurance companies, some of which have moved almost entirely into health insurance. And it is with these intermediaries, rather than with providers directly, with whom employers increasingly contract to provide health care for the employees for whose health they are responsible. Decisions about what counts as appropriate care for reasonable cost have devolved to a great extent onto these new players in this old game. They occupy a position of great power in the contemporary health care scene, for they are the mediators between the patients and the payers of health care, and they control the purse strings.

Whatever the advantages of our new methods of reimbursement for cost containment (and the advantages on that front seem to have been temporary), the advantages for quality of care seem problematic. The new players in the health care game often seem to be operating in ways which are outside the Hippocratic matrix that has united hospitals and their employees under shared ethical imperatives in the past. Instead of deliberating about means to a commonly agreed upon end, the feeling is arising that the ends themselves are contested.

One important task that faces us is getting all parts of the extended and extending health care network communicating with each other in a common ethical language, with some agreed upon common premises. Jerome Kassirer in an influential NEJM editorial posed a similar question when he asked whether we need a new ethic for the new medicine.

Looks like an easy task: there is wide public agreement that the goal of the healthcare system is appropriate care for a reasonable cost, for those in need of care; that healthcare is to some extent a social good, as well as a social expense; and that equity and fairness in its distribution are desirable.

But the wide agreement on general principles can turn very quickly into disagreement when we look more closely at how the ethical conversation is carried out. There is a gulf between administrators and clinicians, in some institutions so extreme a gulf that they barely speak the same language, and each side refuses to take into account what each sees as the other's responsibility. So in the realm of practice you have "cost" and "care" contrasted, rather than coordinated.

In the realm of theory things are not much better as health economists speak the language of resource allocation and cost benefit analysis and physicians and bioethicists talk about patient's "rights" to care and professional responsibilities to provide that care.

There are some candidates for a common ground in the language already being used by different components of the healthcare system; but in various ways they all seem to fall short of the required task.



Candidates for the common ground:

(1)   We are told that the managed care organization or insurer is responsible not for the health of individuals, as physicians might be thought to be - but responsible for populations. Because of the rhetorical shift from individuals to populations as the intended recipients of care, one tempting candidate for the common language of ethics is the language of public health. Disease prevention and health maintenance - what in nursing programs is called "wellness" care - are explicit objectives of many health plans, Are we in transition in this decade from a clinical ethics to a public health ethics?

Certainly a broadening of medical attention from crisis intervention and intensive care is welcome; but I'm not convinced that our current rhetoric of "populations" necessarily marks a shift to a broader public health perspective. For one thing, there is a radical ambiguity in what the "population" under consideration might be. The "population" the individual doctor is supposed to take into consideration is the group of patients for whom he is responsible, among whom he must distribute the resources at his disposal, both his time and his (often capitated) financial resources. The managed care organization's population is the enrollees in that health plan, their "covered lives." The population for which the hospital is held responsible is sometimes all the patients in the hospital, and sometimes interpreted to be all the potential patients in the community it serves. In a particularly invidious use of the term, health economist David Eddy contrasted patients and population; the patient is a person whose perspective prioritizes care, while the 'population' is the rest of the society, us, those for whom cost containment is a priority. Rather than resolving disagreements, this use of the notion of "population" creates a hobbsean image of a war of each against all - hardly the way in which I am accustomed to think of a public health ethic.

This last use of the term 'population' makes explicit the possible danger implicit in the rhetoric of populations. It is a contrast of the interests of the group with the health of the individual (as if there were a population that was not the cumulative sum of individuals) in a quasi-utilitarian calculation. I am responsible for the greatest health of the greatest number, and thus entitled or justified in subordinating the interests of an individual to the interests of the collective when the net advantage results. When confronted with a troubling allocation decision on behalf of an individual patient, the language of "population" is where we run to. This invocation of "populations" is not a turn to the ethics of public health, but is a shift in the kind of interventions that are being offered in a "treat the covered individual" context. By giving health promotion and disease prevention programs a central place in their marketing, managed care organizations hope to forestall more expensive individual crisis interventions later on, and (as Daniel Callahan cynically suggested in his 1999 JMP article) gain a valuable public relations strategy. Meanwhile actual public health measures have declined nationwide (and indeed, world wide, as Laurie Garrett's new book suggests) as a consequence of the diversion of scarce public moneys into the private sector.

(2)   I think it is clear that 'rights' language is no better as a candidate for a new language of ethics to unite our warring rhetorics. I have a philosophers distaste for invoking the language of rights in situations where there is no corresponding specifically designated duty-bearer, and despite the current moves to get "patient's bills of rights" through various legislatures, it is clearly a rhetorical and a conditional, not an actual, right that anyone has to specific treatment. It's sort of like "if you can get into the system and be paid for, we will treat you well." Whatever my rights might be as a patient, I have no obligation to be insured, there is noone who is obligated to insure me, and there is only a conditional and often reluctant obligation to assist me in case of a healthcare need when I have no insurance. To call our health system a patchwork from the perspective of people needing healthcare is to flatter it.

The question of what counts as justice in healthcare is equally variable across speakers and perspectives. I got another shocker from the David Eddy article I cited above when I noticed that the justice problem from a resource perspective is couched in the following unfelicitous way: How do we deal with the problem of equity in the distribution of resources, such that no individual receives more than his fair amount? (--which means, more than he has paid for). There is no reference to any concept of justice which involves need, despite what I would view as an expectation in the wider society that level of need should count in the calculation of what it is fair to distribute. The conflict between cost and care persists.

[One of the most interesting books I've read recently in my search for a common ethical language in which to adjudicate the different perspectives that are driving the discussion on both the practical and theoretical levels is Milton Fisk's most recent book, Toward a Healthy Society. He emphasizes that health is a social goal, a goal for the community as a whole. Providing the conditions for it must be a political action. He calls for a "political morality" based on a broad consensus to provide the structural basis for achieving this public good, and his recommendations for achieving this end are much more radical than any of the piecemeal reforms and accommodations in most of the literature I've been reading. Like many of us, he hopes for an eventual resolution in the form of a national health insurance. But until then, cost and care continue to be contrasted in theory and practice.]



We need a system of healthcare that "manages resources, quality and access associated with the delivery of healthcare." Each of these issues is being addressed on a different level. The current presidential campaign features some moves to address our neglected question of access, reflecting a general public belief that it is on that broadest political level that the issues of access must be addressed. The task of managing resources, by choice or default, seems to have devolved into the managed care organizations and insurers. The perspective of resource management and efficient utilization of the healthcare resources forces us toward the consequentialist language of the greatest good for the greatest number. The determination of what care is appropriate and what cost is reasonable moves away from the institutional and individual providers, and those decisions are increasingly made outside of the institutions most cognizant of their professional responsibility to those in need of the care.

This is a familiar story to us all, and continues to be debated in this forum. [One of the speakers in the managed care session Friday referred to problems with the utilitarian calculus of health economists as they attempt to quantify over societal values in resource allocation by means of imaginative projections into other people's heads; and one of the comments from the floor was the absence of real information about what people's values are, and the dearth of real conversations about their reasons for holding them ...]

The organization ethics movement in hospitals has been one of the attempts to address the cost/care dichotomy by working to provide an alliance between the individual providers and the institutions in which they practice - an alliance in which the concern for cost and the obligation for care can be treated as united, not separate, problems, and adjudicated on an institutional level. The hope is that the organization ethics process in a hc organization can provide a forum in which the competing priorities and the reasons for holding them can be explored; a forum in which the speakers of competing ethical languages might be able to come to common ground in practice, if not in theory.

I have been thinking primarily about o.e. in hospitals. Others on the program have been thinking about coordination, integration and communication on other levels of the healthcare system, and accountability relations within that system. One of the problems that seems to me a very difficult one is the fact that care decisions are at least partially under the decision control of a sector of the healthcare system with no longstanding historical tradition of fiduciary responsibility to the patient. I hope this is a temporary condition, and as the managed care industry matures the priorities of the various segments of the health care system will begin to converge. The real threat of regulation and legislation and the promise of increased market share may move us in the direction of that convergence. There has been the beginning of a voluntary self-regulation movement as various managed care trade associations draw up standards of conduct, although so far as I know there has been little in the way of enforcement. The equivalent of a hospital organization ethics process in the institutions on the managed care level would be an interesting experiment; when I wake up in the middle of the night I sometimes speculate on how that might work.

It's pretty speculative at this point, though. Organization ethics is a work in progress, with hospitals throughout the country all beginning to invent it in their own institutions and systems. We have various model programs that are working variously well, and lots of well intended people throughout the entire system working toward the same end: of a healthcare system that can work more efficiently and more equitably to deliver more appropriate care for a more reasonable cost, for all those in need of care.

It is what society expects of them.