Codes and Contracts: Democratizing Professional Ethics

What exactly is the nature of a professional code of ethics? That is the question raised by a recent editorial in JAMA which affirmed recommendations for the development of a new, unified code of ethics for health professionals by the Institute of Medicine’s (IOM’s) Global Forum on Innovation in Health Professional Education workshop. But perhaps more significantly, what the IOM proposed is not a new, transdisciplinary code of ethics, but a “social contract” that will govern the work of health care professionals and their roles and relations in society. While the former is, in part, appropriate and commendable, the latter is not; for the IOM has misapplied the concept of social contract and disemboweled the concept of a profession.

Citing Rousseau as a prime example, the authors of the editorial define social contract “an agreement among members of a society to cooperate for social benefits,” maintaining that “professions also require social contracts, wherein professional groups acquire social prerogatives in exchange for promises regarding expertise, group self-regulation, and service.“ But then they err in linking codes of ethics with social contracts, averring, “Professional obligations under these social contracts are often expressed in codes of ethics.”

A social contract as originally defined was a political theory that concerned the legitimacy and authority of the state over the individual: individuals consented to surrender some of their freedoms in submission to an authority in exchange for protection of their rights. It entailed a relinquishment of natural rights and freedoms to obtain benefits of the political order. It had—and has–nothing to do with “codes of ethics.”

So where did the authors come up with the erroneous association of codes of ethics and social contracts? Perhaps from the AMA itself: a precedence was set when the AMA used the term “social contract” in their 2001 Declaration of Professional Responsibility—the subtitle of which is “Medicine’s Social Contract with Humanity.” But in fact, the Declaration is no social contract at all, but a global code of ethics.

What both the AMA and the authors have done is confound the concept of a code of ethics with a social contract. But to reiterate, a code of ethics is NOT a social contract. The profession of medicine, as traditionally understood, is a moral endeavor—a moral art—necessarily entailing the activities of moral agents. Historically these activities have been bounded by internally-derived moral constraints and virtues determined by the profession itself or by its nature, not externally-imposed rules and regulations. A professional code of ethics is the conscience of a profession, a delineation of these internally-derived values for conduct and behavior of its members, entailing the standards of excellence and honorable behavior expected of its members. These intrinsic values and moral commitments involve more than minimalistic prohibitions; they are integral to the character of the physician and shape the professional relationship, supplying its bounds, and guiding the employment of technique in the service of the patient.

Moreover, moral obligations can only be accepted by free choice; they cannot be mandated or imposed on a moral agent, for as long as one is not directing their own activity, they are not responsible, and hence they are not a free moral agent. A professional code of ethics is not and cannot be an externally imposed set of rules and regulations.

The term “enforcement” also appears in the IOM’s recommendations, further evidence of their confusion about the nature of a profession and of a professional code of ethics. They recommend development of new institutional frameworks for enforcing these standards—standards determined by the public, not by the moral agent themselves. In other words, they are not talking about “codes of ethics” at all, but about laws.

A final “insight” from the IOM workshop was the “principle of reciprocity” as the foundation of the code of ethics: reciprocity would determine “what health professionals should expect of each other, what society and individuals should expect from health professionals, and what health professionals should expect from individuals and society.” But can a society really commit to reciprocity in health care? Caring for the sick and vulnerable is not a reciprocal arrangement. It could theoretically entail refusing to care for those who didn’t meet the standards set for individual responsibility in health care.

While the IOM’s recommendation of a transdisciplinary code of ethics to govern all health professionals is commendable, their concept of it as a social contract is not. Social contract theory applies to the legitimacy of governmental authority over individual freedom, not health care. As such it belongs to the arena of licensure, not codes of ethics, which are distinct entities. As a moral art, a profession is bound by its commitment to a set of intrinsic values and moral convictions in the exercise of its skills. In medicine, this is distinguished by the concept of an oath by which the physician professes total commitment of their medical skills to the well-being of the patient within the bounds set by the profession. Confounding codes of ethics with social contracts and instituting regulation of moral determinations will irreparably alter professional obligations and further threaten the profession of medicine as it has been historically understood.

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