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Divided loyalties for physicians: Social context and moral problems
Sot. Ser. .Med. Vol. 23. No. 8. pp. 827-832. Printed in Great Britain. All rights reserved
1986 Copyright
01::.9536,86 C 1956 Pergamon
S3 00 + 0.00 Journals Ltd
DIVIDED LOYALTIES FOR PHYSICIANS: SOCIAL CONTEXT AND MORAL PROBLEMS THOMAS H. MURRAY The Institute for the Medical Humanities, The University of Texas Medical Branch. Galveston, TX 77550, U.S.A. Abstract-An examination of the notion of divided loyalties dilemmas in medicine, situated within their social contexts, yields insight into the contemporary social and moral position of medicine in the United States. In a review of the literature, the author identifies four concepts important to gaining an understanding of the position that divided loyalties play in medicine and the physic&-patient relationship. After describing some of the situations in which these dilemmas affect physicians’ responses to patients’ health care needs, interests, and choices, the author argues that divided loyalties dilemmas are not rare, and will probably increase with the changes in U.S. medicine. Candor and awareness of the importance of the public belief in physician loyalty are seen as necessary in preventing these changes from becoming destructive of the physician-patient relationship. Key ,rords-divided
loyalties, social control, bioethics, medical ethics, ethics
Physicians sometimes face such difficult conflicts of obligation that they might properly, if dramatically, be called ‘divided loyalties’ or even ‘double agent’ dilemmas. These have been seen as moral dilemmas
for the physicians involved in them, as well as threats to the prestige of the medical profession generally. These are genuine moral dilemmas, but their existence depends to an extraordinary degree on particular social arrangements, and on the histories of specific institutions and of the medical profession itself. A careful look at the concept of divided loyalties dilemmas in medicine, situated within their social contexts, may yield some insights into the contemporary situation-social and moral-of medicine in the U.S. One of the difficulties in discussing divided loyalty dilemmas is that the concept has not been defined adequately. Stephen Toulmin’s article in this issue offers one, fairly narrow definition: when “an individual’s previously legitimate and compatible relationships, either to two or more individuals,or to two or more institutions, become irreconcilable in ways that force him to choose between them” [l]. I believe that
a broader notion is more useful. A good way to begin the discussion is to proceed inductively by presenting what are generally taken to be valid examples of divided loyalties dilemmas. Several of the earliest articles on double agent or divided loyalties problems for physicians focus on psychiatrists. Seymour Halleck discussed them from his experience as a prison and a university psychiatrist [2]. A case study explored the moral responsibility of a psychiatrist working for a medical school’s student health service who had diagnosed a former student as a ‘latent schizophrenic,’ and-&mmunicated that diagnosis to other medical schools as well [3]. A symposium on ‘The Psychiatrist as Double Agent’ examined the dilemmas faced by psychiatrists working in the military, in psychiatric institutions, and in prisons, as well as the so-called ‘duty to warn’ 827
in the case of a patient who poses a likely danger of harm to others [4]. Just why psychiatry should be the initial focus is unclear. Thomas Szasz’s criticisms of psychiatrists who work for institutions may have been a factor [j]. Another likely influence is the central place confidentiality plays within the psychotherapeutic relationship, and the fact that recent attempts had been made, and at times resisted, to pry information loose from psychiatrists by, among others, administrators of the U.S. Peace Corps [6]. Also contributing to the heightened awareness of such dilemmas within psychiatry may have been the potentially sti_matizing impact of being labelled as ‘mentally ill.’ In any event, the focus has changed from the medical specialty of psychiatry to the institutional contexts within which physicians practice: from psychiatry to the prison, the military, and the corporation. At this time, physicians practicing within institutions, such as the three just mentioned, are said to confront paradigmatic instances of divided loyalties dilemmas. Other cases are less clear. For example, adolescent physicians and psychiatrists [_i, sports team physicians [8], and physicians caught up in the corporatization and privatization of health care [9] are often alleged to be in situations ripe for divided loyalities conflicts. It is no longer enough merely to identify divided loyalties dilemmas; the time has come to analyze them in a way that will link them up with the social conditions that nurture them, and to examine their ethical implications in the light of an adequate conceptual understanding of them. A review of the literature on divided loyalties dilemmas permits four initial generalizations: 1. Divided loyalties dilemmas are often linked with the need to perform some social control functions. 2. Patients’ expectations about physicians are important in the creation of divided loyalties dilemmas, and in their ethical resolution. These expectations are
828
THosr;\s H. \IcRR.A'~
an empirical phenomenon: they may be studied, and if they change. that would likely affect the ethical dimensions of divided loyalties dilemmas. 3. It is important to understand the complev ethical nature of the physician-patient relationship in order to make sense out of divided loyalties dilemmas. 4. Finally. divided loyalties dilemmas must be understood in terms of the moral values served by the profession of medicine, MEDICINE
AS SOCIAL
COhTROL
One plausible thesis about divided loyalties dilemmas is that they reveal starkly the social control functions that medicine routinely performs: deciding. for example, whether to permit someone to assume the ‘sick role.’ According to this thesis. these social control tasks are a part of routine medical practice, but usually hidden. When physicians work for certain institutions, such as the military or the corporation. where the institution’s welfare often runs counter to that of its workers (or soldiers), the conflict of interests between institution and patient lays naked the job of social control done by physicians. In his article in this issue. Edmund Howe demonstrates that in the military, the prerogatives of medicine have always been subjugated to the goals of the institution [IO]. The ‘mission’ is what matters, and medicine within the military is in the service of the mission, just as are those responsible for artillery, supplies or transport. Michael Schwartz was a psychiatrist who found himself in the U.S. military and who felt considerable conflicts of loyalty: “The psychiatrist in the military is presently torn between duty to the organization and duty to his patients. In order to function as a ‘good’ military psychiatrist, one must accept that he is there not to help individuals who are in distress, but rather to keep as many men as possible working to achieve the military’s goals” [I I]. The devotion to the interests of his patients, with which he had been inculcated in his psychiatric training, was no longer the operative norm; this conflict of moral norms caused him considerable emotional distress. To be successful, so the argument might go, it is essential that the military not be burdened with those who are unfit for whatever reason, and since physicians (including psychiatrists) are likely to have knowledge of unfitness, it is necessary that those physicians communicate such information to commanding officers. This might not have seemed an especially onerous form of social control when it was confined to identifying people who were physically incapable of duty or detecting those obviously trying to evade it. But what of other forms of social control with less clear rationales? Howe discusses the problem of homosexuality in the U.S. Military [lo]. The clear implication is that physicians are being used to enforce a morally questionable form of social exclusion based on highly speculative notionsa?out why the presence of homosexuals in the militaryyhreatens the fulfillment of its social mission. The idea that physician’s loyzlty to the patient is not absolute. but must be weighed within its social context is further amplified in Robert Gellman’s
article on the laws governing medical contidentiality in the U.S. [I?]. Confidentiality of medical information is. in the law’s view. clearly a relative and not an absolute good. There are many circumstances where maintaining contidentiality is not permitted, but disclosure is mandated. Whether it be protecting the public health. or detecting and deterring violent crime. there are a number of social purposes that are deemed in the Ian to be more important than preserving medical confidentiality. There are then circumstances where the physician’s legal duty. at least, to the state or to the public good overrides the duty to the individual patient. Another setting that exposes the social control aspect of medical practice is the corporation. Diana Chapman Walsh’s article describes eloquently the functions vvhich occupational physicians are called upon to perform, and the efforts made by physicians, practicing in occupational settings. to cope with the conflict between the control obligations imposed upon them in the role of corporate physician and their desire to adhere to a norm of primary loyalty to individual patients [ 131.It has proven by no means an easy task. While the individuals ministered to by physicians in the military and the corporation are clearly there to serve the interests of the larger institution, that is not so obvious in other institutions. for example, the university. Robert Arnstein details the experience of one university health service trying to balance its obligations to its student-patients against other interests, including the university administration, outside agencies, and even, at times, the student’s own desires [7]. Arnstein argues persuasively that the university is there in major part to serve the student, and that therefore it has a different relationship to its students than has the corporation to its workers or the military to its soldiers. (The university’s relations with its employees, however, might be no different than that of other employers to their workers. The claim here is not that universities are more virtuous than other institutions. but that their students are more like clients than employees.) Certainly, one of the most disturbing results of divided loyalties dilemmas is the use of medicine to do the ‘dirty work’ for institutions, especially so when that social control work is dressed up in the trappings of a therapeutic enterprise. Reviewing his experience as a university and prison psychiatrist, Halleck conwho accepts the role of cludes ‘.the psychiatrist double agent.. has substantial political influence. Unless he is constantly vigilant in protecting his patient’s interest, he can easily lapse into the role of guardian of the status quo” [2]. Yet. emphasizing the social control dimensions of medicine does not seem to capture the full moral richness of divided loyalties dilemmas. Surely there is an ethical distinction worth preserving between the totalitarian police who imprison a popular opposition politician, and a compassionate physician who diagnoses a patient’s heart disease, permitting him to don the ‘sick role’ and enter the hospital. Both are working for institutions; both are engaged in what sociologists consider the work of social control. Yet no one would assume for a moment that the security police are trying to act in the best interest of
Divided loyalties dilemmas for physicians their prisoner, as we would be well justified in assuming that of the physician and her patient. Furthermore, there is a moral distinction between the physician just mentioned, and another physician employed by a company and whose job it is to judge whether an employee is disabled, and if so, if that disability was caused by working for the employerthe same employer who pays the physician’s salary, and who will pay if the employee’s disability is deemed work-related. So while divided loyalties dilemmas emerge most clearly when physicians are engaged in the less savory and more obvious sorts of social control work, the sociological framework of ‘social control’ turns out to be too broad and insufficiently nuanced to capture important dimensions, especially moral ones, of divided loyalty dilemmas even within medicine.
THE IMPORTANCE OF EXPECTATIONS
Assuming a pained expression when in fact one holds a very good hand in poker is not regarded as a form of lying, even though there is a clear intention of deceive. Bluffing and some other forms of deception are considered perfectly acceptable within the context of a card game. That is what people expect. (Of course, other forms of deception such as using concealed cards would be morally unacceptable.) Expectations do not necessarily determine the moral quality of an action. Expecting that politicians will lie to me does not provide a moral excuse for their doing so. But there are times when expectations are vitally important in determining whether a particular act is morally tolerable. That is certainly the case in many divided loyalties situations in medicine. Correctly or not, many people appear to believe that when they consult a physician who is acting in a professional capacity, that physician will act in their best interests, will act as their agent. The depth and importance of that faith in the physician’s intentions appears in a brief excerpt of a physician-patient encounter quoted by David Barnard. An elderly woman responded to her physician’s question as to how she was feeling by saying: “Father-I mean, Doctor.. .” [14]. Barnard adds: “Her words bespeak an expectation of nurturance and welcome, support and patience, necessary to allow the confessional intimacy of the medical encounter” [14, p. 2281. We do not need to believe that all meetings of physicians and patients reach this level of intimacy and trust in order to acknowledge the central importance of patients’ assumptions that their physicians are trustworthy. Before the recent transformation of medicine into a much more capital-intensive enterprise, and now the trend towards control by profit-seeking corporations, that assumption may have been relatively unproblematic. Of course, physicians have always had incentives to make money by seeing patients more frequently; but whatever conflicts of inte&t and obligation might have existed, they were lar$ly confined to the two parties. Increasingly, many other institutions are intruding into now the physician-patient relationship in pursuit of either money or information. As a consequence, even the
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routine practice of medicine has become a much more complex affair requiring the physician to weigh and balance a multitude of interests and obligations. So patients’ expectation that when they consult their physician they are engaging her full, uncomplicated and uncompromised loyalty, may be even less correct now than it once was. An even clearer instance of unwarranted expectations involves physicians in the service of an institution. The company physician performing an examination on an employee to determine if his injury is disabling and job-related is not in the same moral or legal relationship to that employee as would be the employee’s personal physician. A moral problem arises when the employee holds the false expectation that he can trust the company physician to look out for the employee’s interests in the same manner and to the same extent as his personal physician would. The problem is exacerbated when the company physician either encourages this false assumption, or fails to dispel it firmly and unequivocally. This problem is further compounded when the leaders of the profession, as has happened in occupational medicine, insist that the well-being of the employee is their principal, or even sole concern. In certain interactions, that may well be true: but at other times it is clear that company physicians must give primary allegiance to the interests of the corporation. The refusal to acknowledge, let alone dispel, this misconception simply perpetuates a dangerous ambiguity. False expectations are common to many social interactions. Why do they evoke so much concern in the context of physicians’ divided loyalties dilemmas? The answer lies in the distinctiveness of physician-patient relationships.
THE PHYSICIAN-PATIENT RELATIONSHIP AS REGULATIVE IDEAL
The relationship between physicians and patients is peculiar in several respects. For one thing, physicians are generally permitted to learn intimate details about a person’s body-and, especially so for psychiatrists, about a person’s behaviors, beliefs, fantasies-the most private, important, and usually concealed particulars of a person’s life. We would rarely confide such information to those closest to us, let alone strangers, unless some very special circumstances obtained. We would not want to reveal these things to someone unless we were assured that they would be kept in confidence, and that the information we were surrendering was to be used for our personal benefit. The significance of the information made available, its status as highly private and often closely held, makes it important that expectations about confidentiality and agency be correct. Along with the importance of the information given in the physician-patient relationship is the general need for patients to have trust in their physician. Especially vital for the divided loyalties problem is trust that the physician will hold the patient’s interest as primary. Since in many instances therapeutic success depends upon openness, which depends in turn upon trust, false expectations can be
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quite damaging. Naively trusting a physician who is acting as someone else’s agent can harm a person’s interests: if one has had such an experience of unwarranted trust in a physician, one is more likely not to trust a physician when trust is in fact justified, and again the patient’s interests might be damaged. Another way of emphasizing the importance of accurate expectations in the physician-patient relationship is to point out that it is one of very few relationships that can be described as fiduciary. In a fiduciary relationship, the fiduciary party is presumed to be acting with the best interests of the other party at heart. Unlike other relationships in which people look out for the other’s interest such as those between friends or family members where the links are based on sentiment and shared experience, the fiduciary is paid for his or her services. Yet unlike other business relationships, where each party can be assumed to be trying to maximize their self-interest, the fiduciary is obligated by law and custom to pursue the other’s interest. It would be very important to know when the assumption that one is in a fiduciary relationship is invalid. In his article, Toulmin dismisses the complaint of a hypothetical athlete against his team physician who divulged medical information to the team’s management. “So what else is new?’ Toulmin writes [l, p. IO]. But in dismissing the athlete’s naive confusion so quickly, Toulmin may be underestimating the ubiquity, power and importance of an idealized model of the physician’s loyalty to each individual patient. By dint of sad and repeated experience, people have learned to regard certain physicians, or physicians practicing under certain circumstances, as exceptions to the idealized model. In some companies workers are said to refer to the company physician as ‘Mister’ rather than ‘Doctor.’ This is intended as an insult, and shows paradoxically just how elevated and honorific the address of ‘Doctor’ actually is (while, at the same time, it indicates that this particular physician is unworthy of the title). But like most important lessons, this one must be learned anew many times. Also, there may be considerable danger if the lesson is learned too well. There are at least two ways to view the assumption that my physician is my agent, is loyal to me. The first, somewhat cynical view is that this is an iniquitous fiction that the medical profession has succeeded in persuading the public to believe, and that it pays off for the profession in status and income. No doubt there is some truth to the claim that the public’s belief in their physician’s loyalty is oversimplified and at times just not true, and in the assertion that this belief often serves the interest of the medical profession. But a second view is that this same belief, to the extent that it is sincerely held up-by physicians as an ideal to which they should aspire, serves the interests of the public as well in two ways. First, it encourages physicians to behave as much as possible in accord with the ideal, and provides grounds for-criticism should they fall seriously short of it. Se&id, if we take as true the assumption that the operZess made possible by patients’ trust in their physicians’ loyalty enhances the therapeutic value of the physician-patient relationship, then a belief that my physician will indeed be loyal to me will make me
more inclined to be open with him or her, and more likely that the encounter will be therapeutically effective. Imagine for a moment a situation where we had absolutely no confidence that our physicians intended to help us (at least as much as they wanted to help themselves) and where what was confided to them might well appear in the next morning’s newspaper. The social value of a normative view of the physician’s loyalty to each patient should be abundantly clear. It can and should serve as a regulative ideal; not something that everyone can achieve at all moments, but a template against which all efforts can be measured and, when found wanting. criticized. While it is easy then to belittle the assumption of physician loyalty as a naive and sometimes damaging myth, we must also acknowledge its positive value as a regulative ideal, without which medical care would be less effective and all of us worse off. An oft-proposed solution to divided loyalty dilemmas is to ensure that the patient understands the nature of the particular encounter with a physician, especially when the normal assumption of fiduciality does not hold; that is, to make expectations conform to reality. In a symposium, Eliot Freidson argued: “The moral issue is not that a psychiatrist may be committed to sending the troops back to the front line, but that an individual may have an unfounded trust in the professional’s luck of such a duty. Shouldn’t you give them a Miranda warning at the very outset. namely, ‘Anything you say may be used to send you back to the front lines, or anything you say may keep you in prison’?” [4, p.j]. Honesty about deviations from the fiduciary model is important, but will not solve all problems associated with divided loyalty dilemmas. For one thing, there may be practical difficulties in informing patients. While it might be sensible for a prison psychiatrist, evaluating someone at the request of a parole board, to warn the person at the outset that this is not a typical physician-patient encounter, would it make equal sense for a family physician to warn her patient that if she detects the presence of a sexually transmitted disease, she will be compelled to report it to the local public health authority? In the latter case such a warning would be awkward at best, usually unnecessary, and it might make the establishment of an open, trusting relationship difficult. Yet that is just the sort of relationship most likely to benefit that patient. Practically, then, ‘Miranda’-type warnings are likely to create as many problems as they solve, at least in certain settings. Realistically, physicians do not have to choose between ‘Miranda’-warnings and silence. They can and should exercise discretion, warning their patients if they are beginning to broach subjects that might require disclosure. But this leaves open the possibility that information may come up before a warning can be given, and then physicians, however clear their legal duty, may find themselves in a dilemma where their loyalty to the patient is threatened by their obligation to the public welfare. Beyond this, there is a more subtle difficulty that requires an examination of the goals of medicine. and of the physician caught in a conflict between those goals and the patient’s desires.
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Divided loyalties dilemmas for physicians DIVIDED LOYALTIES AND THE ESDS OF 1lEDICINE
One important ambiguity persists in the notion that a physician’s principal loyalty ought to be to the patient. The ambiguity is illuminated in Robert Amstein’s article when he asks: “Is the conscious wish of the patient always in his best interest?” [7, p. 171. That is a natural way for a psychiatrist to pose the question of a possible gap between what a patient wants, and what is in a patient’s interest. But one need not assume any psychopathology to find the same dilemma elsewhere in medicine. One context in which it quite regularly occurs is sports medicine [8]. Athletes frequently seek the assistance of physicians to take often considerable risks to their long-term interests, especially their health. They do so by wanting to compete despite injuries that might well become aggravated into chronic disabilities, and by taking drugs like anabolic steroids that they believe will enhance their competitive abilities 1151. These are not obviously irrational choices, certainly not clear evidence of psychopathology. They are more likely illustrations of disagreement about values-specifically about the relative importance of success in a sport. as against the value of conserving health. Physicians asked to assist someone in risking their health are in an intriguing kind of divided loyalty dilema. They are torn between their loyalty to the patient’s interests, at least as the patient defines them, and loyalty to the ends of medicine, including the pursuit of health and, not least, the renunciation of harm. There are two ways to present this apparent conflict. If we distinguish between a person’s desires and a person’s interests, we can argue that there really are no divided loyalties here; the physician is consistently and unambiguously loyal to that aspect of the patient’s interests that has always been the physician‘s concern-namely, the maintenance of health. But if we allow that a person’s other interests may at times be weighty enough to sacrifice or risk health to some degree, then we must admit that it is at least possible that physicians might refuse to act in accord with a patient’s interests, when doing so would involve the physician in violating his or her dedication to preserving health. Vv’c do not need to choose between these two perspectives on the conflict to acknowledge that a physician’s loyalty is not simply and unambiguously to the patient. but rather to a good health which is not the only thing people can care about deeply and with good reason. It is in this sense that one can speak meaningfully about physicians’ commitment to the ‘art’ of medicine, distinctive from their commitment to the patient.
there will be blatant examples of divided loyalty dilemmas. These examples are potentially the most dangerous to the general belief that physicians are loyal to their patients’ interests, if they are not clearly identified and the potential ambiguity dispelled. But also because of their obviousness, they are the easiest to address once we are willing to acknowledge them as exceptions to the normative rule. At least for this class of divided loyalty dilemmas, candor is necessary and probably sufficient. But one must be careful never to underestimate the human capacities for denial and self-deception that may be operating in both patients and physicians. For other. subtler, forms of divided loyalties dilemmas the solution is not so obvious. The factors transforming medicine in the contemporary US-corporatization, physician ownership of medical facilities, cost-containment pressures-separately and collectively threaten to intensify and elaborate a wide range of conflicts of interest and obligation. Assuring that these pressures do not result in destructive changes in the relations between patients and physicians will require constant vigilance. And success is by no means assured. As in the more obvious divided loyalties dilemmas, candor is necessary. In these instances it is probable that candor is not sufficient alone, but needs to be supplemented by a heightened awareness of the importance of the public belief in physician loyalty, and of the moral grounding of the practice of medicine. Acknowledgemenfs--I want to thank my colleagues at the Institute for the Medical Humanities, especially David Barnard, Owen Grush and William Winslade for their good criticisms of earlier drafts of this article. This set of articles derives from a symposium on Divided Loyalties Dilemmas in Medicine conducted while the author was at the Hastings Center. The symposium and related research were supported by a grant from the Atlantic Richfield Foundation to the Hastings Center. The views expressed in the articles are those of the individual authors, and should not be taken to represent the views of the Hastings Center or of the Atlantic Richfield Foundation.
REFERENCES
1. Toulmin
2. 3:
COSCLUDING
THOUGHTS
Divided loyalty dilemmas are likely to persist. As long as other interests intrude intoyhe physician-patient relationship-and at timeydey must. for the relationship is neither absolute “nor sacred-such dilemmas will continue to arise. Furthermore, as long as some physicians are called upon to-do the more obvious ‘dirty work’ of social control,
4.
5. 6.
S. Divided loyalties and ambiguous relationships. Sot. Sci. Med. 23, 783-787, 1986. Toulmin wishes to define the concept of ‘divided loyalties dilemmas’ in a way that restricts them to very rare circumstances. Since the interesting moral and social questions occur along the full range of what he regards as a continuum between simple ‘conflicts of obligation’ and genuine divided loyalties dilemmas, I will use the phrase to denote the full continuum, in keeping with the manner of its use until now. Halleck S. L. The Politics oJ Therapy. Science House, New York, 1971. Callahan D. and Gaylin W. The psychiatrist as double agent. Hasrinm Center Reo. 4. 12-14. 1974. Symposium. in the service-of ;he state: the psjchiatrist as double agent. Hastings Center Rep. Special Suppl., April, 1978. Szasz T. The /Myth of Menial Illness. Harper & Row, New York, 1961. Menninger W. W. and English J. T. Confidentiality and the request for psychiatric information for nontherapeutic purposes. Am. J. Psychiat. 122, 638-645, 1965.
832
‘THOMAS
7. Amstein R. L. Divided loyalties in adolescent psychiatry: late adolescence. Sot. Sci. Med. X3,797.-802, 1986. 8. Murray T. H. Divided loyalties in sports medicine. Pysicn Sports Med. 12, 134-140, 1984. 9. Relman A. S. Cost control, doctors’ ethics, and patient care. Issues Sci. Technol. 103-111, Winter 1985. 10. Howe E. G. Ethical issues regarding mixed agency of military physicians. Sot. Sci. Med. 23, 803-815, 1986. I 1. Schwartz M. N. Military psychiatry-theory and practice in noncombat areas: the role conflicts of the psychiatrist. Comprehens. Psyehiur. 12, 520-525. 1971.
H. MURIUY 12. Gellman R. M. Divided loyalties: a physician’s responsibilities in an information age. Sot. Sci. Med. 23, 817-826, 1986. 13. Chapman Walsh D. Divided loyalties in medicine: the ambivalence of occupational medical practice. Sot. Sci. Med. 23, 789-796, 1986. 14. Barnard D. The gift of trust: psychodynamic and religious meanings in the physician’s office. Soundings 65, 213-232, 1982. 15. Murray T. H. The coercive power of drugs in sports. Hastings Center Rep. 24-30, August, 1983.
1986 Copyright
01::.9536,86 C 1956 Pergamon
S3 00 + 0.00 Journals Ltd
DIVIDED LOYALTIES FOR PHYSICIANS: SOCIAL CONTEXT AND MORAL PROBLEMS THOMAS H. MURRAY The Institute for the Medical Humanities, The University of Texas Medical Branch. Galveston, TX 77550, U.S.A. Abstract-An examination of the notion of divided loyalties dilemmas in medicine, situated within their social contexts, yields insight into the contemporary social and moral position of medicine in the United States. In a review of the literature, the author identifies four concepts important to gaining an understanding of the position that divided loyalties play in medicine and the physic&-patient relationship. After describing some of the situations in which these dilemmas affect physicians’ responses to patients’ health care needs, interests, and choices, the author argues that divided loyalties dilemmas are not rare, and will probably increase with the changes in U.S. medicine. Candor and awareness of the importance of the public belief in physician loyalty are seen as necessary in preventing these changes from becoming destructive of the physician-patient relationship. Key ,rords-divided
loyalties, social control, bioethics, medical ethics, ethics
Physicians sometimes face such difficult conflicts of obligation that they might properly, if dramatically, be called ‘divided loyalties’ or even ‘double agent’ dilemmas. These have been seen as moral dilemmas
for the physicians involved in them, as well as threats to the prestige of the medical profession generally. These are genuine moral dilemmas, but their existence depends to an extraordinary degree on particular social arrangements, and on the histories of specific institutions and of the medical profession itself. A careful look at the concept of divided loyalties dilemmas in medicine, situated within their social contexts, may yield some insights into the contemporary situation-social and moral-of medicine in the U.S. One of the difficulties in discussing divided loyalty dilemmas is that the concept has not been defined adequately. Stephen Toulmin’s article in this issue offers one, fairly narrow definition: when “an individual’s previously legitimate and compatible relationships, either to two or more individuals,or to two or more institutions, become irreconcilable in ways that force him to choose between them” [l]. I believe that
a broader notion is more useful. A good way to begin the discussion is to proceed inductively by presenting what are generally taken to be valid examples of divided loyalties dilemmas. Several of the earliest articles on double agent or divided loyalties problems for physicians focus on psychiatrists. Seymour Halleck discussed them from his experience as a prison and a university psychiatrist [2]. A case study explored the moral responsibility of a psychiatrist working for a medical school’s student health service who had diagnosed a former student as a ‘latent schizophrenic,’ and-&mmunicated that diagnosis to other medical schools as well [3]. A symposium on ‘The Psychiatrist as Double Agent’ examined the dilemmas faced by psychiatrists working in the military, in psychiatric institutions, and in prisons, as well as the so-called ‘duty to warn’ 827
in the case of a patient who poses a likely danger of harm to others [4]. Just why psychiatry should be the initial focus is unclear. Thomas Szasz’s criticisms of psychiatrists who work for institutions may have been a factor [j]. Another likely influence is the central place confidentiality plays within the psychotherapeutic relationship, and the fact that recent attempts had been made, and at times resisted, to pry information loose from psychiatrists by, among others, administrators of the U.S. Peace Corps [6]. Also contributing to the heightened awareness of such dilemmas within psychiatry may have been the potentially sti_matizing impact of being labelled as ‘mentally ill.’ In any event, the focus has changed from the medical specialty of psychiatry to the institutional contexts within which physicians practice: from psychiatry to the prison, the military, and the corporation. At this time, physicians practicing within institutions, such as the three just mentioned, are said to confront paradigmatic instances of divided loyalties dilemmas. Other cases are less clear. For example, adolescent physicians and psychiatrists [_i, sports team physicians [8], and physicians caught up in the corporatization and privatization of health care [9] are often alleged to be in situations ripe for divided loyalities conflicts. It is no longer enough merely to identify divided loyalties dilemmas; the time has come to analyze them in a way that will link them up with the social conditions that nurture them, and to examine their ethical implications in the light of an adequate conceptual understanding of them. A review of the literature on divided loyalties dilemmas permits four initial generalizations: 1. Divided loyalties dilemmas are often linked with the need to perform some social control functions. 2. Patients’ expectations about physicians are important in the creation of divided loyalties dilemmas, and in their ethical resolution. These expectations are
828
THosr;\s H. \IcRR.A'~
an empirical phenomenon: they may be studied, and if they change. that would likely affect the ethical dimensions of divided loyalties dilemmas. 3. It is important to understand the complev ethical nature of the physician-patient relationship in order to make sense out of divided loyalties dilemmas. 4. Finally. divided loyalties dilemmas must be understood in terms of the moral values served by the profession of medicine, MEDICINE
AS SOCIAL
COhTROL
One plausible thesis about divided loyalties dilemmas is that they reveal starkly the social control functions that medicine routinely performs: deciding. for example, whether to permit someone to assume the ‘sick role.’ According to this thesis. these social control tasks are a part of routine medical practice, but usually hidden. When physicians work for certain institutions, such as the military or the corporation. where the institution’s welfare often runs counter to that of its workers (or soldiers), the conflict of interests between institution and patient lays naked the job of social control done by physicians. In his article in this issue. Edmund Howe demonstrates that in the military, the prerogatives of medicine have always been subjugated to the goals of the institution [IO]. The ‘mission’ is what matters, and medicine within the military is in the service of the mission, just as are those responsible for artillery, supplies or transport. Michael Schwartz was a psychiatrist who found himself in the U.S. military and who felt considerable conflicts of loyalty: “The psychiatrist in the military is presently torn between duty to the organization and duty to his patients. In order to function as a ‘good’ military psychiatrist, one must accept that he is there not to help individuals who are in distress, but rather to keep as many men as possible working to achieve the military’s goals” [I I]. The devotion to the interests of his patients, with which he had been inculcated in his psychiatric training, was no longer the operative norm; this conflict of moral norms caused him considerable emotional distress. To be successful, so the argument might go, it is essential that the military not be burdened with those who are unfit for whatever reason, and since physicians (including psychiatrists) are likely to have knowledge of unfitness, it is necessary that those physicians communicate such information to commanding officers. This might not have seemed an especially onerous form of social control when it was confined to identifying people who were physically incapable of duty or detecting those obviously trying to evade it. But what of other forms of social control with less clear rationales? Howe discusses the problem of homosexuality in the U.S. Military [lo]. The clear implication is that physicians are being used to enforce a morally questionable form of social exclusion based on highly speculative notionsa?out why the presence of homosexuals in the militaryyhreatens the fulfillment of its social mission. The idea that physician’s loyzlty to the patient is not absolute. but must be weighed within its social context is further amplified in Robert Gellman’s
article on the laws governing medical contidentiality in the U.S. [I?]. Confidentiality of medical information is. in the law’s view. clearly a relative and not an absolute good. There are many circumstances where maintaining contidentiality is not permitted, but disclosure is mandated. Whether it be protecting the public health. or detecting and deterring violent crime. there are a number of social purposes that are deemed in the Ian to be more important than preserving medical confidentiality. There are then circumstances where the physician’s legal duty. at least, to the state or to the public good overrides the duty to the individual patient. Another setting that exposes the social control aspect of medical practice is the corporation. Diana Chapman Walsh’s article describes eloquently the functions vvhich occupational physicians are called upon to perform, and the efforts made by physicians, practicing in occupational settings. to cope with the conflict between the control obligations imposed upon them in the role of corporate physician and their desire to adhere to a norm of primary loyalty to individual patients [ 131.It has proven by no means an easy task. While the individuals ministered to by physicians in the military and the corporation are clearly there to serve the interests of the larger institution, that is not so obvious in other institutions. for example, the university. Robert Arnstein details the experience of one university health service trying to balance its obligations to its student-patients against other interests, including the university administration, outside agencies, and even, at times, the student’s own desires [7]. Arnstein argues persuasively that the university is there in major part to serve the student, and that therefore it has a different relationship to its students than has the corporation to its workers or the military to its soldiers. (The university’s relations with its employees, however, might be no different than that of other employers to their workers. The claim here is not that universities are more virtuous than other institutions. but that their students are more like clients than employees.) Certainly, one of the most disturbing results of divided loyalties dilemmas is the use of medicine to do the ‘dirty work’ for institutions, especially so when that social control work is dressed up in the trappings of a therapeutic enterprise. Reviewing his experience as a university and prison psychiatrist, Halleck conwho accepts the role of cludes ‘.the psychiatrist double agent.. has substantial political influence. Unless he is constantly vigilant in protecting his patient’s interest, he can easily lapse into the role of guardian of the status quo” [2]. Yet. emphasizing the social control dimensions of medicine does not seem to capture the full moral richness of divided loyalties dilemmas. Surely there is an ethical distinction worth preserving between the totalitarian police who imprison a popular opposition politician, and a compassionate physician who diagnoses a patient’s heart disease, permitting him to don the ‘sick role’ and enter the hospital. Both are working for institutions; both are engaged in what sociologists consider the work of social control. Yet no one would assume for a moment that the security police are trying to act in the best interest of
Divided loyalties dilemmas for physicians their prisoner, as we would be well justified in assuming that of the physician and her patient. Furthermore, there is a moral distinction between the physician just mentioned, and another physician employed by a company and whose job it is to judge whether an employee is disabled, and if so, if that disability was caused by working for the employerthe same employer who pays the physician’s salary, and who will pay if the employee’s disability is deemed work-related. So while divided loyalties dilemmas emerge most clearly when physicians are engaged in the less savory and more obvious sorts of social control work, the sociological framework of ‘social control’ turns out to be too broad and insufficiently nuanced to capture important dimensions, especially moral ones, of divided loyalty dilemmas even within medicine.
THE IMPORTANCE OF EXPECTATIONS
Assuming a pained expression when in fact one holds a very good hand in poker is not regarded as a form of lying, even though there is a clear intention of deceive. Bluffing and some other forms of deception are considered perfectly acceptable within the context of a card game. That is what people expect. (Of course, other forms of deception such as using concealed cards would be morally unacceptable.) Expectations do not necessarily determine the moral quality of an action. Expecting that politicians will lie to me does not provide a moral excuse for their doing so. But there are times when expectations are vitally important in determining whether a particular act is morally tolerable. That is certainly the case in many divided loyalties situations in medicine. Correctly or not, many people appear to believe that when they consult a physician who is acting in a professional capacity, that physician will act in their best interests, will act as their agent. The depth and importance of that faith in the physician’s intentions appears in a brief excerpt of a physician-patient encounter quoted by David Barnard. An elderly woman responded to her physician’s question as to how she was feeling by saying: “Father-I mean, Doctor.. .” [14]. Barnard adds: “Her words bespeak an expectation of nurturance and welcome, support and patience, necessary to allow the confessional intimacy of the medical encounter” [14, p. 2281. We do not need to believe that all meetings of physicians and patients reach this level of intimacy and trust in order to acknowledge the central importance of patients’ assumptions that their physicians are trustworthy. Before the recent transformation of medicine into a much more capital-intensive enterprise, and now the trend towards control by profit-seeking corporations, that assumption may have been relatively unproblematic. Of course, physicians have always had incentives to make money by seeing patients more frequently; but whatever conflicts of inte&t and obligation might have existed, they were lar$ly confined to the two parties. Increasingly, many other institutions are intruding into now the physician-patient relationship in pursuit of either money or information. As a consequence, even the
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routine practice of medicine has become a much more complex affair requiring the physician to weigh and balance a multitude of interests and obligations. So patients’ expectation that when they consult their physician they are engaging her full, uncomplicated and uncompromised loyalty, may be even less correct now than it once was. An even clearer instance of unwarranted expectations involves physicians in the service of an institution. The company physician performing an examination on an employee to determine if his injury is disabling and job-related is not in the same moral or legal relationship to that employee as would be the employee’s personal physician. A moral problem arises when the employee holds the false expectation that he can trust the company physician to look out for the employee’s interests in the same manner and to the same extent as his personal physician would. The problem is exacerbated when the company physician either encourages this false assumption, or fails to dispel it firmly and unequivocally. This problem is further compounded when the leaders of the profession, as has happened in occupational medicine, insist that the well-being of the employee is their principal, or even sole concern. In certain interactions, that may well be true: but at other times it is clear that company physicians must give primary allegiance to the interests of the corporation. The refusal to acknowledge, let alone dispel, this misconception simply perpetuates a dangerous ambiguity. False expectations are common to many social interactions. Why do they evoke so much concern in the context of physicians’ divided loyalties dilemmas? The answer lies in the distinctiveness of physician-patient relationships.
THE PHYSICIAN-PATIENT RELATIONSHIP AS REGULATIVE IDEAL
The relationship between physicians and patients is peculiar in several respects. For one thing, physicians are generally permitted to learn intimate details about a person’s body-and, especially so for psychiatrists, about a person’s behaviors, beliefs, fantasies-the most private, important, and usually concealed particulars of a person’s life. We would rarely confide such information to those closest to us, let alone strangers, unless some very special circumstances obtained. We would not want to reveal these things to someone unless we were assured that they would be kept in confidence, and that the information we were surrendering was to be used for our personal benefit. The significance of the information made available, its status as highly private and often closely held, makes it important that expectations about confidentiality and agency be correct. Along with the importance of the information given in the physician-patient relationship is the general need for patients to have trust in their physician. Especially vital for the divided loyalties problem is trust that the physician will hold the patient’s interest as primary. Since in many instances therapeutic success depends upon openness, which depends in turn upon trust, false expectations can be
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quite damaging. Naively trusting a physician who is acting as someone else’s agent can harm a person’s interests: if one has had such an experience of unwarranted trust in a physician, one is more likely not to trust a physician when trust is in fact justified, and again the patient’s interests might be damaged. Another way of emphasizing the importance of accurate expectations in the physician-patient relationship is to point out that it is one of very few relationships that can be described as fiduciary. In a fiduciary relationship, the fiduciary party is presumed to be acting with the best interests of the other party at heart. Unlike other relationships in which people look out for the other’s interest such as those between friends or family members where the links are based on sentiment and shared experience, the fiduciary is paid for his or her services. Yet unlike other business relationships, where each party can be assumed to be trying to maximize their self-interest, the fiduciary is obligated by law and custom to pursue the other’s interest. It would be very important to know when the assumption that one is in a fiduciary relationship is invalid. In his article, Toulmin dismisses the complaint of a hypothetical athlete against his team physician who divulged medical information to the team’s management. “So what else is new?’ Toulmin writes [l, p. IO]. But in dismissing the athlete’s naive confusion so quickly, Toulmin may be underestimating the ubiquity, power and importance of an idealized model of the physician’s loyalty to each individual patient. By dint of sad and repeated experience, people have learned to regard certain physicians, or physicians practicing under certain circumstances, as exceptions to the idealized model. In some companies workers are said to refer to the company physician as ‘Mister’ rather than ‘Doctor.’ This is intended as an insult, and shows paradoxically just how elevated and honorific the address of ‘Doctor’ actually is (while, at the same time, it indicates that this particular physician is unworthy of the title). But like most important lessons, this one must be learned anew many times. Also, there may be considerable danger if the lesson is learned too well. There are at least two ways to view the assumption that my physician is my agent, is loyal to me. The first, somewhat cynical view is that this is an iniquitous fiction that the medical profession has succeeded in persuading the public to believe, and that it pays off for the profession in status and income. No doubt there is some truth to the claim that the public’s belief in their physician’s loyalty is oversimplified and at times just not true, and in the assertion that this belief often serves the interest of the medical profession. But a second view is that this same belief, to the extent that it is sincerely held up-by physicians as an ideal to which they should aspire, serves the interests of the public as well in two ways. First, it encourages physicians to behave as much as possible in accord with the ideal, and provides grounds for-criticism should they fall seriously short of it. Se&id, if we take as true the assumption that the operZess made possible by patients’ trust in their physicians’ loyalty enhances the therapeutic value of the physician-patient relationship, then a belief that my physician will indeed be loyal to me will make me
more inclined to be open with him or her, and more likely that the encounter will be therapeutically effective. Imagine for a moment a situation where we had absolutely no confidence that our physicians intended to help us (at least as much as they wanted to help themselves) and where what was confided to them might well appear in the next morning’s newspaper. The social value of a normative view of the physician’s loyalty to each patient should be abundantly clear. It can and should serve as a regulative ideal; not something that everyone can achieve at all moments, but a template against which all efforts can be measured and, when found wanting. criticized. While it is easy then to belittle the assumption of physician loyalty as a naive and sometimes damaging myth, we must also acknowledge its positive value as a regulative ideal, without which medical care would be less effective and all of us worse off. An oft-proposed solution to divided loyalty dilemmas is to ensure that the patient understands the nature of the particular encounter with a physician, especially when the normal assumption of fiduciality does not hold; that is, to make expectations conform to reality. In a symposium, Eliot Freidson argued: “The moral issue is not that a psychiatrist may be committed to sending the troops back to the front line, but that an individual may have an unfounded trust in the professional’s luck of such a duty. Shouldn’t you give them a Miranda warning at the very outset. namely, ‘Anything you say may be used to send you back to the front lines, or anything you say may keep you in prison’?” [4, p.j]. Honesty about deviations from the fiduciary model is important, but will not solve all problems associated with divided loyalty dilemmas. For one thing, there may be practical difficulties in informing patients. While it might be sensible for a prison psychiatrist, evaluating someone at the request of a parole board, to warn the person at the outset that this is not a typical physician-patient encounter, would it make equal sense for a family physician to warn her patient that if she detects the presence of a sexually transmitted disease, she will be compelled to report it to the local public health authority? In the latter case such a warning would be awkward at best, usually unnecessary, and it might make the establishment of an open, trusting relationship difficult. Yet that is just the sort of relationship most likely to benefit that patient. Practically, then, ‘Miranda’-type warnings are likely to create as many problems as they solve, at least in certain settings. Realistically, physicians do not have to choose between ‘Miranda’-warnings and silence. They can and should exercise discretion, warning their patients if they are beginning to broach subjects that might require disclosure. But this leaves open the possibility that information may come up before a warning can be given, and then physicians, however clear their legal duty, may find themselves in a dilemma where their loyalty to the patient is threatened by their obligation to the public welfare. Beyond this, there is a more subtle difficulty that requires an examination of the goals of medicine. and of the physician caught in a conflict between those goals and the patient’s desires.
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Divided loyalties dilemmas for physicians DIVIDED LOYALTIES AND THE ESDS OF 1lEDICINE
One important ambiguity persists in the notion that a physician’s principal loyalty ought to be to the patient. The ambiguity is illuminated in Robert Amstein’s article when he asks: “Is the conscious wish of the patient always in his best interest?” [7, p. 171. That is a natural way for a psychiatrist to pose the question of a possible gap between what a patient wants, and what is in a patient’s interest. But one need not assume any psychopathology to find the same dilemma elsewhere in medicine. One context in which it quite regularly occurs is sports medicine [8]. Athletes frequently seek the assistance of physicians to take often considerable risks to their long-term interests, especially their health. They do so by wanting to compete despite injuries that might well become aggravated into chronic disabilities, and by taking drugs like anabolic steroids that they believe will enhance their competitive abilities 1151. These are not obviously irrational choices, certainly not clear evidence of psychopathology. They are more likely illustrations of disagreement about values-specifically about the relative importance of success in a sport. as against the value of conserving health. Physicians asked to assist someone in risking their health are in an intriguing kind of divided loyalty dilema. They are torn between their loyalty to the patient’s interests, at least as the patient defines them, and loyalty to the ends of medicine, including the pursuit of health and, not least, the renunciation of harm. There are two ways to present this apparent conflict. If we distinguish between a person’s desires and a person’s interests, we can argue that there really are no divided loyalties here; the physician is consistently and unambiguously loyal to that aspect of the patient’s interests that has always been the physician‘s concern-namely, the maintenance of health. But if we allow that a person’s other interests may at times be weighty enough to sacrifice or risk health to some degree, then we must admit that it is at least possible that physicians might refuse to act in accord with a patient’s interests, when doing so would involve the physician in violating his or her dedication to preserving health. Vv’c do not need to choose between these two perspectives on the conflict to acknowledge that a physician’s loyalty is not simply and unambiguously to the patient. but rather to a good health which is not the only thing people can care about deeply and with good reason. It is in this sense that one can speak meaningfully about physicians’ commitment to the ‘art’ of medicine, distinctive from their commitment to the patient.
there will be blatant examples of divided loyalty dilemmas. These examples are potentially the most dangerous to the general belief that physicians are loyal to their patients’ interests, if they are not clearly identified and the potential ambiguity dispelled. But also because of their obviousness, they are the easiest to address once we are willing to acknowledge them as exceptions to the normative rule. At least for this class of divided loyalty dilemmas, candor is necessary and probably sufficient. But one must be careful never to underestimate the human capacities for denial and self-deception that may be operating in both patients and physicians. For other. subtler, forms of divided loyalties dilemmas the solution is not so obvious. The factors transforming medicine in the contemporary US-corporatization, physician ownership of medical facilities, cost-containment pressures-separately and collectively threaten to intensify and elaborate a wide range of conflicts of interest and obligation. Assuring that these pressures do not result in destructive changes in the relations between patients and physicians will require constant vigilance. And success is by no means assured. As in the more obvious divided loyalties dilemmas, candor is necessary. In these instances it is probable that candor is not sufficient alone, but needs to be supplemented by a heightened awareness of the importance of the public belief in physician loyalty, and of the moral grounding of the practice of medicine. Acknowledgemenfs--I want to thank my colleagues at the Institute for the Medical Humanities, especially David Barnard, Owen Grush and William Winslade for their good criticisms of earlier drafts of this article. This set of articles derives from a symposium on Divided Loyalties Dilemmas in Medicine conducted while the author was at the Hastings Center. The symposium and related research were supported by a grant from the Atlantic Richfield Foundation to the Hastings Center. The views expressed in the articles are those of the individual authors, and should not be taken to represent the views of the Hastings Center or of the Atlantic Richfield Foundation.
REFERENCES
1. Toulmin
2. 3:
COSCLUDING
THOUGHTS
Divided loyalty dilemmas are likely to persist. As long as other interests intrude intoyhe physician-patient relationship-and at timeydey must. for the relationship is neither absolute “nor sacred-such dilemmas will continue to arise. Furthermore, as long as some physicians are called upon to-do the more obvious ‘dirty work’ of social control,
4.
5. 6.
S. Divided loyalties and ambiguous relationships. Sot. Sci. Med. 23, 783-787, 1986. Toulmin wishes to define the concept of ‘divided loyalties dilemmas’ in a way that restricts them to very rare circumstances. Since the interesting moral and social questions occur along the full range of what he regards as a continuum between simple ‘conflicts of obligation’ and genuine divided loyalties dilemmas, I will use the phrase to denote the full continuum, in keeping with the manner of its use until now. Halleck S. L. The Politics oJ Therapy. Science House, New York, 1971. Callahan D. and Gaylin W. The psychiatrist as double agent. Hasrinm Center Reo. 4. 12-14. 1974. Symposium. in the service-of ;he state: the psjchiatrist as double agent. Hastings Center Rep. Special Suppl., April, 1978. Szasz T. The /Myth of Menial Illness. Harper & Row, New York, 1961. Menninger W. W. and English J. T. Confidentiality and the request for psychiatric information for nontherapeutic purposes. Am. J. Psychiat. 122, 638-645, 1965.
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7. Amstein R. L. Divided loyalties in adolescent psychiatry: late adolescence. Sot. Sci. Med. X3,797.-802, 1986. 8. Murray T. H. Divided loyalties in sports medicine. Pysicn Sports Med. 12, 134-140, 1984. 9. Relman A. S. Cost control, doctors’ ethics, and patient care. Issues Sci. Technol. 103-111, Winter 1985. 10. Howe E. G. Ethical issues regarding mixed agency of military physicians. Sot. Sci. Med. 23, 803-815, 1986. I 1. Schwartz M. N. Military psychiatry-theory and practice in noncombat areas: the role conflicts of the psychiatrist. Comprehens. Psyehiur. 12, 520-525. 1971.
H. MURIUY 12. Gellman R. M. Divided loyalties: a physician’s responsibilities in an information age. Sot. Sci. Med. 23, 817-826, 1986. 13. Chapman Walsh D. Divided loyalties in medicine: the ambivalence of occupational medical practice. Sot. Sci. Med. 23, 789-796, 1986. 14. Barnard D. The gift of trust: psychodynamic and religious meanings in the physician’s office. Soundings 65, 213-232, 1982. 15. Murray T. H. The coercive power of drugs in sports. Hastings Center Rep. 24-30, August, 1983.