Clinical ethics consulting and conflict of interest

Hastings Center Report

Volumn 37, Issue 2, 2007, Pages 32-40

  Meyers, Christopher ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CONFLICT OF INTEREST; DECISION MAKING; ECONOMICS; ETHICIST; ETHICS; HUMAN; INSTITUTIONAL CARE; MEDICAL ETHICS; MORALITY; MOTIVATION; SALARY AND FRINGE BENEFIT; SOCIOLOGY; STANDARD;

CONFLICT OF INTEREST; DECISION MAKING; ETHICISTS; ETHICS, CLINICAL; GOALS; HUMANS; INSTITUTIONAL PRACTICE; MORALS; SALARIES AND FRINGE BENEFITS; SOCIOLOGY, MEDICAL;

EID: 34247592398     PISSN: 00930334     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (51)

1. D. Katz, A.L. Caplan, and J.F. Merz, "All Gifts Large and Small: Toward an Understanding of the Ethics of Pharmaceutical Industry Gift-Giving," American Journal of Bioethics 3, no. 3 (2003): 39-46.
2. M. Davis, "Conflict of Interest: A Primer," presentation at the 2005 conference of the Association for Practical and Professional Ethics, San Antonio, Texas, and again at the spring 2005 meeting of the American Society for Bioethics and Humanities, Albany, New York;
3. M. Davis, "Introduction," in Conflict of Interest in the Professions, ed. M. Davis and A. Stark (New York: Oxford University Press, 2001), 3-21;
4. M. Davis, "Conflict of Interest Revisited," Business and Professional Ethics Journal 12, no. 4 (1993): 21-41;
5. M. Davis, "Conflict of Interest," Business and Professional Ethics Journal 1 (1982): 17-27.
6. This definition leaves some ambiguity as to whether the conflict exists in the situation or in the psychology - that is, in the altered judgment. Legal approaches tend to-ward the former interpretation, and Davis adopts the latter, while also giving considerable attention to the situational conditions that produce such alterations. Davis is, I think, correct. I would just add the clarification that the situation creates the potential for a conflict, but it becomes one only when the agent's judgment is in fact altered, Probably the vast majority of potential conflicts become actual; in fact, my analysis is significantly more inclusive of conflict-inducing circumstances than is typical in the literature.
7. Davis, "Conflict of Interest," 22, and "Conflict of Interest Revisited," 23-24.
8. N.R. Luebke, "Conflict of Interest as a Moral Category," Business and Professional Ethics Journal 6, no. 2 (1987): 66-81, at 69.
9. Davis, "Conflict of Interest: A Primer," 2.
10. Davis, "Conflict of Interest Revisited," especially 30-35.
11. Ibid., 22-25.
12. Conflicts of obligation occur when one's multiple role-engendered duties compete in a way that corrupts the professional's judgment. See K. Kipnis, "Conflict of Interest and Conflict of Obligation," in Ethics and the Legal Profession, ed. M. Davis and F.A. Eliston (New York: Prometheus, 1986), 283-98.
13. Davis hints he would also distinguish between conflict of obligation and of interest when he says that he would "reject analyses which attempt to understand conflict of interest consisting merely of conflict of role"; Davis, "Conflict of Interest Revisited," 36. It is not clear whether Davis would draw the distinction if the conflicting role served merely to damage a professional's judgment to act or advise on behalf of another. Conflicts of bias occur when one's prejudices damage one's judgment, often in a subconscious way; C. Meyers, "Managed Care Ethics: Anything New?" Journal of Medical Ethics 25, no. 5 (1999): 382-87.
14. Strictly, I leave it undecided whether bioethics consultants are or should be considered professionals. I avoid such commitment in part because of the "client" problems noted below.
15. Task Force on Standards for Bioethics Consultation, Core Competencies for Health Care Ethics Consultation (Glenville, Ill.: American Society for Bioethics and Humanities; 1998);
16. F. Baylis, ed., The Health Care Ethics Consultant (Totowa, N.J.: Humana Press, 1994);
17. and M.P. Aulisio, R.M. Arnold, and S.J. Younger, eds., Ethics Consultation: From Theory to Practice (Baltimore, Md.: The Johns Hopkins University Press, 2003).
18. C. Meyers, "A Defense of the Philosopher-Ethicist as Moral Expert," Journal of Clinical Ethics 14, no. 4 (2003): 259-69.
19. Ibid. For the facilitation model, see Task Force on Standards for Bioethics Consultation, Core Competencies, 6-7.
20. For a discussion of procedural safeguards, see D.J. Cssarett, F. Daskal, and J. Lantos, "The Authority of the Clinical Ethicist," Hastings Center Report 28, no. 6 (1998): 6-11.
21. Some hospitals have well-established ombudspersons or patient rights advocates, which could at least reduce the need for consultants to devote as much attention to the goal of empowering decision-makers.
22. For example, the ABA Canons require an attorney, "as advocate, . . . [to] zealously assert the client's position under the rules of the adversary system"; "Preamble," 2002, www.abanet.org/cpr/mrpc/preamble.html.
23. See also The American Institute of Architects Code of Professional Conduct, http://www.aia.org/SiteObjects/files/code-ofethics.pdf, especially Code Three.
24. I am grateful to John Hardwig, Michelle Carter, and Lisa Parker for helping me sort out these points. I would also note this language draws upon a key distinction: "doing right" means making choices based upon correct motives and does not necessarily correspond with "doing good" - that is, with producing the best results.
25. The "process" caveat avoids any squeamishness about claims of moral realism and is the primary approach urged by the Task Force on Standards for Bioethics Consultation.
26. See A. Baier, "Some Thoughts on How We Moral Philosophers Live Now," Monist 67, no. 4 (1984): 490-97. Consulting ethicists are, of course, not like the priesthood, since any conclusions we would draw or processes we would recommend are grounded in evidence and careful reasoning, not in faith and history.
27. I am grateful to Michael Davis for his helpful suggestions and analogies here.
28. P. Werhane, "The Normative/Descriptive Distinction in Methodologies of Business Ethics," Business Ethics Quarterly 4, no. 2 (1994): 175-80;
29. P. Werhane, Moral Imagination and Management Decision Making (New York: Oxford University Press, 1999);
30. C. Meyers, "Institutional Culture and Individual Behavior: Creating an Ethical Environment," Journal of Science and Engineering Ethics 10, no. 2 (2004): 269-76.
31. Carl Elliott makes a similar point, using "captured" for "co-opted," in his discussion of what can happen to regulatory advisors; "Six Problems with Pharma-Funded Bioethics," Studies in History and Philosophy of Biological and Biomedical Sciences 35, no. 1 (2004): 125-29, at 127. The consultant must also be careful she does not become mere window-dressing for the institution.
32. Werhane, Moral Imagination and Management Decision Making.
33. Ibid., p. 49.
34. Organizational culture can also damage the scientific search for truth that serves as one of the models for my conception of the clinical ethicist role.
35. Werhane, Moral Imagination and Management Decision Making, 56.
36. Elliott, "Six Problems with Pharma-Funded Bioethics," 127.
37. Ibid., 128.
38. Most discussions of nonclinical ethics consultants focus almost exclusively on material inducement. R.G. DeVries and C.L. Bosk, "The Bioethics of Business: Rethinking the Relationship between Bioethics Consultants and Corporate Clients," Hastings Center Report 34, no. 5 (2004): 28-32;
39. C. Elliott, "Pharma Goes to the Laundry: Public Relations and the Business of Medical Education," Hastings Center Report 34, no. 5 (2004): 18-23;
40. Elliott, "Six Problems with Pharma-Funded Bioethics." I owe the term "intangible benefits" to Lisa Parker.
41. Tom Beauchamp reached a similar condusion during comments at the spring 2005 meeting of the American Society for Bioethics and Humanities in Albany, N.Y. See also L. Turner, "Beware the Celebrity Bioethicist," Chronicle of Higher Education, May 7, 2004, B18.
42. Katz, Caplan, and Merz, "All Gifts Large and Small," 40-41.
43. Others are less skeptical of the possibility for achieving needed reform: A.S.
44. Brett, "Cheap Trinkets, Effective Marketing: Small Gifts from Drug Companies to Physicians," American Journal of Bioethics 3, no. 3 (2003): 52-54;
45. S. Krimsky, "Small Gifts, Conflicts of Interest, and the Zero-Tolerance Threshold in Medicine," American Journal of Bioethics 3, no. 3 (2003): 50-52.
46. Compare this to Greg Koski's call for nonprofit pharmaceuticals, with different structural arrangements for their ethics consultants: G. Koski, "FDA and the Life-Sciences Industry: Business as Usual?" Hastings Center Report 34, no. 5 (2004): 24-27, at 27.
47. See also B. Brody et al., "Bioethics Consulting in the Private Sector," Hastings Center Report 32, no. 3 (2002); 14-20, for concrete suggestions of how to reduce the threats associated with material gain. They rightly stress proper negotiating techniques and communication among all participants, especially regarding the consultant's range of skills and mutual expectations. While these recommendations should reduce the threat to judgment, they do not get at the main, structural, problem. I also obviously disagree with their position that consultants should take an advocate's role only in rare cases.
48. While it seems improbable such reform could be systematically achieved, individual universities with the commitment and resources should still sponsor it. This does not solve the problem, for reasons noted below, but it could make a dent.
49. I am grateful to an anonymous reviewer for suggesting this point.
50. Dante Landucci, a physician who probably would have personally benefited from my being more fully co-opted, rightly called me on such language use early in my career. That single suggestion made a significant difference in how I approached my work.
51. See Elliott, "Pharma Goes to the Laundry"; Elliott, "Six Problems with Pharma-Funded Bioethics."