The professional responsibility model of ethics in obstetrics and gynaecology
The professional responsibility model of obstetrics and gynaecology invokes the professional virtues of physicians—self-effacement, selfsacrifice, compassion, and integrity—and clinically applicable ethical principles—beneficence, respect for autonomy, and healthcare justice (1-3).
Some readers might assume that professional ethics in obstetrics and gynaecology, as a subset of professional ethics in medicine more generally, derive from ancient Greece and the writings known as the Hippocratic Corpus, especially the renowned Hippocratic Oath. Other readers might assume that these professional virtues and ethical principles have only been introduced in the past four decades, dating from the beginnings of bioethics in the United States and the United Kingdom and spreading around the world since that time. We take exception to both views.Is there a Hippocratic tradition of professional medical ethics?
The origin and author of the Hippocratic Oath are unknown. The Oath itself appeals to two concepts (4). The first concept is techne, which is often—but erroneously—translated as the art of medicine that is somehow understood to be distinct from the science of medicine. For the physicians of the Hippocratic or Koan school of medicine—no surgeons were permitted—techne was understood to be the fixed, unchanging, and unchangeable fund of knowledge of health and disease, both of which were a function of the four humours and the clinical skills of very carefully deploying this fund of knowledge in clinical practice. The result is therapeutic minimalism, in which clinical observation is central, with only modest clinical interventions permitted and always deployed with preventing the physician from being blamed for the patient's death. Techne is a selfinterested, antiscientific basis for clinical practice, wholly antithetical to modern science as the basis of clinical practice.
The second concept is reputation—what others think about one. Other physicians will think well of one when one adheres to the requirements of techne, especially, as called for in the Oath, by keeping techne ‘pure and holy', that is, uncorrupted by change (which does not define the modern science of medicine). One keeps techne, now understood as a set of trade secrets, ‘pure and holy' by not sharing trade secrets with physicians who have not sworn the Oath as a written covenant with colleagues, that is, as a guild Oath. When reputation prioritizes individual and guild self-interest rather than excellent patient care, reputation becomes wholly antithetical to the life of service to patients that should characterize medicine as a profession.
Even if, contrary to this interpretation of the Oath, it were a professional Oath worthy of the name, there is no unbroken tradition of taking the Oath that comes down to us from ancient Greece, what Baker has called the Hippocratic ‘footnote' (5). Nutton (6) has shown that references to the Oath do not appear after the first several centuries of the Common Era. When the Oath comes back into favour in the early decades of the twentieth century, it is invoked in what Nutton calls a conservative fashion. By this, Nutton means that the purpose of the invocation was to validate medicine as a profession by appealing to the memory of a revered historical figure, a purpose to which the figure of Hippocrates has often been put in the history of medicine (7). This appeal to the figure of Hippocrates, Nutton adds, was used an antidote to the fragile social standing of medicine at that time. The idea that there was a Hippocratic tradition of professional medical ethics turns out to be a twentieth-century creation, out of whole cloth.
Ahistorical bioethics
The field of bioethics, especially in the United States, was taken by many of its founders to be engaging new and unprecedented ethical challenges in medical science and practice to which the tools of contemporary philosophical ethics should be brought to bear (8).
This occurred at a time—the late 1960s and early 1970s—when the dominant methods in philosophical ethics were, like the dominant methods of philosophy generally, ahistorical. The result was that that early bioethics was almost exclusively ahistorical. One important exception was the first edition of the Encyclopedia of Bioethics, the editor of which, Warren Reich, was historically minded and thus included a large section on the history of medical ethics (9). However, the self-understanding of bioethics as having a history that preceded it, the history of medical ethics, did not gain wide traction in the field. The consequence was the failure to recognize the transformative accomplishment of medical ethics in eighteenth-century Enlightenment Scotland and England.The invention of professional medical ethics
Two remarkable physicians of these national enlightenments invented professional medical ethics, the physician-ethicists John Gregory (10) (1724-1773) of Scotland and Thomas Percival (11) (1740-1804) of England (12, 13). They did so in response to the corrosive distrust of physicians, surgeons, midwives, apothecaries, and ‘unorthodox’ practitioners (less kindly, ‘quacks') who competed fiercely with each other for the small private- practice market. Private medical care was purchased by the well-to-do and provided for them in their homes. There were almost as many concepts of health and disease and remedies as there were practitioners. Dorothy Porter and Roy Porter have provided compelling documentation of widespread distrust of the sick towards practitioners (14). The sick did not think that practitioners, including physicians and surgeons who had been admitted to the ranks of the royal colleges in London and Edinburgh, knew what they were doing. The sick thought that the primary motivation of practitioners was self-interest in money and reputation. Gregory and Percival thought that this rampant distrust made becoming sick or injured even more of a trial than it already was.
They also thought that practising medicine and surgery—they were among the first to call for physicians and surgeons to work together for the benefit of patients—in such a corrosive context was antithetical to what the life of service to patients should be. They set out to change medicine by using the tools of science and ethics.The scientific tool that they both invoked was the philosophy of medicine of Francis Bacon (1561-1626) (12). Bacon called for medicine to be based on what he called ‘experience’. By this, he emphatically did not mean the individual, personal experiences of physicians and surgeons, because this was (and still is) a hopelessly biased source of knowledge. Instead, ‘experience’ meant the carefully observed results of natural and controlled experiments. The Baconian physicians of Edinburgh, where Gregory was both a student and professor and where Percival was a student, introduced a nascent form of what has become evidence-based medicine.
The ethics tool was the ‘science of man’ and the ‘science of morals’ in the work of David Hume (1711-1776) for Gregory and the lesser known but still very important Richard Price (1723-1791) for Percival (12, 13). Both based ethical reasoning on scientific discoveries about human nature and eschewed ‘speculative philosophy’, that is, philosophy disconnected from Baconian experience. Hume and Price both emphasized that human nature is defined by relationships among individuals. We are, by our nature, directed to the protection and promotion of the interests of others, provided that this natural capacity is supported by requisite virtues (traits or habits of character that blunt self-interest in favour of the life of service to others).
In their enormously influential medical ethics writings, Gregory and Percival invented the ethical concept of medicine. Becoming a physician requires three sustained commitments:
1. The physician or surgeon should commit to becoming and remaining scientifically and clinically competent by engaging in evidence-based practice and research.
2. The physician or surgeon should commit to using scientific clinical competence primarily to protect and promote the health-related interests of each patient, keeping self-interest systematically secondary.
3. Physicians and surgeons should commit to sustaining medicine as what Percival called a ‘public trust’ rather than a selfinterested merchant guild. As a public trust, medicine belongs both to current and future physicians, surgeons, patients, and society (1, 3, 13).
Four professional virtues and three ethical principles
The implications of these three commitments for clinical practice, research, and health policy can be expressed in the language of four professional virtues and three ethical principles. The professional virtue of self-effacement calls for the doctor to put aside and not be influenced by sources of bias that might distort the commitment to scientific and clinical competence or the second commitment to putting the patient’s interests first. The professional virtue of selfsacrifice requires the doctor to accept reasonable limits on individual self-interest in order to fulfil the second commitment and to accept limits on group self-interest in order to fulfil the third commitment. The professional virtue of compassion requires the doctor to be alert to, prevent, and appropriately manage pain, distress, and suffering of patients.
The professional virtue of integrity is the bedrock professional virtue. It requires the doctor to provide clinical care, conduct research, and teach to standards of intellectual and moral excellence. Intellectual excellence requires the doctor to base clinical care and research on deliberative—evidence-based, rigorous, transparent, and accountable—clinical judgement. Deliberative clinical judgement is essential for the task of responsibly reducing variation in the processes of patient care and thereby improving quality and safety. Moral excellence requires the doctor to focus primarily on the protection and promotion of the patient’s health-related interests and keep individual and group self-interest systematically secondary.
Ethical principles provide guidance on how to protect and promote the health-related interests of the patient. The ethical principle of beneficence has ancient roots and the word, ‘beneficence’, was first used in Percival’s Medical Ethics of 1803 (11). This ethical principle requires the physician to identify and provide clinical care that is reliably expected in deliberative clinical judgement to result in net clinical benefit for the patient. The ethical principle of beneficence supports the clinical concept of medically reasonable: a form of clinical management is medically reasonable when it is technically possible and in deliberative clinical judgement is expected to result in net clinical benefit. The ethical principle of beneficence subsumes the well-known admonition to ‘first do no harm’, which is known as the ethical principle of non-maleficence. It is not well appreciated that the Hippocratic text Epidemics does not say ‘first do no harm’ but ‘As to diseases, make a habit of two things -to help, or at least to do no harm’ (15). This means that the doctor should first aim to benefit the patient and then, when the limits of medicine to alter the course of disease or injury are being approached, to proceed with caution to prevent net iatrogenic clinical harm to the patient. This beautifully captures the relationship between beneficence and nonmaleficence: the latter should guide deliberative clinical judgement when the limits of clinical care to benefit the patient are being approached or have been exceeded. Beneficence is thus the more comprehensive and clinically useful of the two principles.
The ethical principle of respect for autonomy requires the doctor (a) to empower the patient with information about the nature, benefits, and risks of the medically reasonable alternatives for the management of the patient's condition, disability, disease, or injury; (b) to support the patient as she undertakes to understand and evaluate this information and set her priorities; and (c) to take reasonable measures to ensure that the patient's decision-making process is voluntary (1-3), that is, free from controlling internal influences such as uncontrolled anxiety or fear and external influences such as the attempts of family members to dominate or take over the decisionmaking process (16).
The ethical principle of healthcare justice applies to health policy regarding populations of patients (3). For obstetriciangynaecologists, these are female, pregnant, fetal, and neonatal patients. In general, the ethical principle of justice requires that all like cases be treated alike. This very general formulation is too abstract to provide clinical guidance. However, when specified to the healthcare setting, healthcare justice does provide guidance. In the specific context of healthcare, cases are alike on the basis of deliberative clinical judgement about diagnosis and clinical management. Healthcare justice therefore requires the doctor to manage each diagnosis on the basis of deliberative clinical judgement about the medically reasonable alternatives for managing that diagnosis. The ethical principles of healthcare justice and beneficence are thus closely related.
Obligations of doctors and rights of patients
Ethical principles are essential for understanding the key ethical concepts of rights and obligations. A right is a justified claim to be treated in a specified way. A right can be a negative right, that is, a claim to non-interference. For example, the first and second components of the ethical principle of respect of autonomy justify the patient's right to make an informed decision and its third component justifies the patient's right to make a voluntary decision. A right can be a positive right, that is, a claim to the time, energy, and resources of others to protect and promote one's interests. The right to healthcare is a positive right. The ethical principle of healthcare justice supports a positive right to effective healthcare, that is, clinical care that is supported in deliberative clinical judgement. A right can also be a combination of a negative and positive right, for example, when a patient refuses all medically reasonable alternatives but remains a patient. For instance, a patient with well-documented, intrapartum placenta previa may refuse caesarean delivery but remain a patient, in effect exercising a positive right to vaginal delivery.
Rights generate obligations or duties of doctors, two words that can be used interchangeably. We will use ‘obligation' in this chapter. In the professional responsibility model, the relationship between the doctor and the patient is asymmetrical. The doctor's relationship to the patient is based on the four professional virtues and three ethical principles and the obligations that they generate. The patient's relationship to the doctor is based on rights. A very important feature of the professional responsibility model is that professional obligations can sometimes justifiably limit patients' rights, especially positive rights and combined negative and positive rights.
Informed decision-making
The professional virtue of integrity and the ethical principles of beneficence and respect for autonomy shape the informed decision-making process with the patient who has decisionmaking capacity or the surrogate of the patient who does not have decision-making capacity. This process begins with the doctor identifying, on the basis of deliberative clinical judgement, the medically reasonable alternatives for managing the patient's condition, disease, disability, or injury. To repeat, that a form of clinical management is technically possible is not sufficient for considering it to be medically reasonable. The doctor should then present the medically reasonable alternatives to the decision maker, patient or surrogate, and provide in lay terms the nature of each alternative along with the clinical benefits and clinical risks of each. This disclosure does not include theoretical benefits and risks. The determination that a form of clinical management is medically reasonable is an expert clinical judgement and therefore not a lay judgement. The doctor should then support the decision maker, alert to deficits in paying attention, memory, and recall, reasoning from present events to their expected consequences (cognitive understanding), believing that those consequences could happen to the patient (appreciation), and evaluating those consequences (evaluative understanding) (17). The point of this is that the doctor's role in the informed decision-making process should not be at ‘arm's length' but engaged and supportive.
There are two clinical contexts in which the doctor should be directive. The first is when there is only one medically reasonable alternative, which the doctor should recommend. The second is when, among two or more medically reasonable alternatives, one is clinically superior in deliberative clinical judgement, which the doctor should recommend.
Sometimes, among medically reasonable alternatives, no one stands out as superior in deliberative clinical judgement. In this clinical context, the doctor should be cautious in making a recommendation and explain the basis for doing so, for example, that one form of medically reasonable care is well supported by the doctor's clinical experience.
It sometimes occurs that a form of clinical management that was justifiably considered medically reasonable and therefore was initiated should later be considered to no longer result in net clinical benefit, for example, failure to progress in labour or the progression of a critically ill female patient to the end stage of gynaecological cancer. In such clinical circumstances, the doctor should explain that the clinical management is no longer medically reasonable and recommend that it be discontinued in favour of a medically reasonable alternative, for example, caesarean delivery for failure to progress in labour and comfort care when a patient has end-stage, terminal gynaecological cancer. We emphasize that making recommendations of the kinds we have described here is not disrespectful of patient autonomy or inconsistent with shared decisionmaking, because such recommendations empower the decision maker with the valued input of the doctor's professional clinical judgement.
The decision maker considers the information that has been provided, with the goal of achieving adequate cognitive understanding, appreciation, and evaluative understanding. The decision maker then expresses a preference, which should be based on cognitive understanding, appreciation, and evaluative understanding.
Responding to refusal of medically reasonable clinical management
There are two outcomes of the informed decision-making process. The most common, by far, is that the decision maker authorizes medically reasonable clinical management. In rare circumstances, however, the decision maker may reject all medically reasonable alternatives. If the patient dismisses the doctor, refusal should be understood as the exercise of a negative right. If the patient remains a patient, refusal should be understood as a negative right combined with a positive right to clinical management that is not medically reasonable.
Doctors should not take refusal personally, because doing so interferes with an ethically justified approach. Responding to such refusals should begin by ruling out inadvertent miscommunication, which can sometimes occur when the patient is being attended by multiple clinicians. The patient should be provided with accurate information and the informed decision-making process recycled. If this fails, the doctor should be alert to deficits in decision-making capacity of the patient and address them, with the assistance of mental health professionals as needed. The goal should be reversing these deficits so that the patient can exercise her autonomy. This is known as assisted decision-making (17). If this fails, then the patient should be evaluated for irreversible deficits of decision-making and a surrogate decision maker identified on the basis of applicable law. The surrogate decision maker should be guided by the substituted judgement, that is, making a decision on the basis of the reliably identifiable patient's values and beliefs (18). If this standard cannot be met, the surrogate should be guided by the best interests standard, which is beneficence based (18).
Sometimes a patient who refuses all medically reasonable forms of clinical management has intact decision-making capacity. In all cases, the doctor should fulfil his or her obligation of informed refusal: explain in detail the risks that the patient is taking; document this disclosure in the record; and ask her to reconsider. If the patient does not do so and dismisses the doctor, this should not be taken personally and the patient should be informed that she is welcome to return for care, especially if her condition worsens. If the patient does not reconsider but wants to remain a patient, then the patient is in effect exercising a positive right to non-beneficial clinical management. The provision of non-beneficial clinical management, especially when it is clinically harmful, is not consistent with professional integrity, beneficence, or non-maleficence (19, 20). There is therefore no ethical obligation to provide such care.
Responding to requests for non-beneficial clinical management
Sometimes patients will make an unprompted request for non- beneficial clinical management. The doctor should be guided by Gregory's advice, based on what he called the professional virtue of candour (10): assess the patient's request to determine whether it is medically reasonable. If her request passes muster, it is consistent with the professional responsibility model to include consideration of it in the informed decision-making process. If it does not pass muster, then it is ethically impermissible to implement it. The doctor should recommend against it and explain the basis in deliberative clinical judgement for this recommendation. Despite being importuned, the doctor should repeat the recommendation and its explanation and explain that the request will not be fulfilled.