Ethics as an Obligation

Originally published in Forum Magazine

Originally published in Volume 23, Number 1 of the Federation Forum Magazine.

We have an obligation as regulators to make sure that the practitioners that we license are trusted by the people that they treat. Too often, the remediation that we choose to use is a band-aid for what we have perceived to be the problem when the problem is actually much larger and much more pervasive.

We had a licensee who billed dead people, which is not a good thing. He found folks who had died, found out their Medicare number and billed them. He believed he had a very logical reason for doing this. His practice wasn’t doing well and he had a lot of staff. He felt that he was responsible for making sure that these peoples could continue to be paid. He thought it was better to bill dead people than to reduce his staff. Medicare did not agree. He had his license taken away and part of the remediation was to take an ethics course, which I happened to teach. All of a sudden it was like he had come to a revival meeting. He jumped up and said, “I get it now,” and of course nobody else in the room knew that he didn’t get it before. He really did have a revelation and actually sent a letter to the board, thanking it for not just reinstating his license but getting him on track to actually be a better practitioner.

There are several courses available dealing with global professionalism, human values and ethics. They explain how ethics is a component of the skills of good patient care and develop confidence in the ability to recognize and remediate the problem. Generally, there is a national network of courses that are available to us. We just need to make sure they serve our specific purposes.

A remedial ethics education course was developed as the request of the New Jersey Board of Medical Examiners. It’s a privately-developed course owned by a private company, a three-day, 18-hour weekend course that is a lecture-case study- reflection format. At its end, participants produce an essay specific to their particular area. The licensing board gets a copy of that essay and feedback from the seminar faculty. Even though it is specific to a particular issue, I would say that it’s not at all designed for physical therapists. The folks that are teaching it are medicine-based, medicine-oriented, and it hasn’t worked out well for our participants. The instructors really don’t understand the issues that physical therapists often have when they have to answer to several masters, as it’s much different than the typical physician situation. We no longer use the course, although it’s very effective for the physician.

One alternative to an ethics course is to have a mentor. It’s little dicey, a little scary. Unless the person has very good, solid skills to mentor a person, he is putting himself in a precarious position. Nonetheless, we need to develop a credible program of remediation. If somebody is found to be in violation of ethics, we must attempt to provide them with meaningful remediation, as opposed to something passive – something where they “don’t get it.” Hopefully we can develop a skill set similar to the one we have for clinical skills. We need to be able to identify it and then to be able to resolve it. The ability to analyze the situation and determine if there is an ethical issue is something that board members struggle with as well. It’s not necessarily a legal problem and identifying it is often difficult.

Long-term research has shown that there is a loss of trust that occurs if a profession is consistently thought not to be ethical. Used car salesmen are usually at the top of that list. And police, lawyers and the clergy are also in that group now as well. Physical therapists really haven’t been on that radar scale. That’s something we want to maintain and one way to do that obviously is to let the public know that when we do come across things that are inappropriate, we remediate. The responsibilities that we have as professionals go beyond the basics provided to us by the code of ethics. They are much bigger and broader that that. You must make a commitment to take action where it’s warranted.

Before remediating or even improving ethical decisions, you must determine the audience. Are we dealing with general practitioners who are either doing okay or haven’t been caught or are these folks that have been identified as having a problem?

Some states have ongoing ethics education for everyone, regardless of whether the person has been found to be in any kind of violation. Other states offer ethics remediation where there is an assumption that there is a lower level of understanding of what really needs to be done. The person has either demonstrated inappropriate decision-making or has demonstrated it more than one time and obviously just doesn’t get it. There is a definite disconnect that occurs. The principles behind ethics, things like autonomy and beneficence, do need to be part of any kind of ethical discussion but they really are just that – principles. If they are not applied to real actions, they don’t make sense. Autonomy can’t be exhibited until the therapist has taken the time to explain it. It needs to be applied. Unfortunately, the path of ethics education has not really been shown to develop any kind of critical thinking skills.

Teaching ethical decision making increases the person’s own decision-making competence. The critical steps in teaching ethical decision-making are being able to understand principles and standards, and then being able to apply them. Workshop learning has been proven to be best in honing ethical skills.

There are some general misconceptions about teaching ethics, a general skepticism that comes with the belief that there is no right or wrong answer. Think of the man who kept saying, “I know billing dead people was a bad thing, but I wasn’t doing it for myself, I was doing it for my staff.” From his perspective, wasn’t he doing the right thing? It took him a while to figure out the rest of the world wasn’t where he was in terms of decision- making. There is a pool of thought of subjectivism that says that “I am feeling really good about what I do and therefore it has to be ethical.” Or, “I go to a nursing home because nobody is going to treat these patients. I can’t get there till 9:30 at night, and I wake him up, but it’s good for him because he would get up in the middle of the night anyway and it’s good for him to see how he walks when he gets up out of the sound sleep…” People can justify in some very unusual ways.

The strengths of teaching ethical decision-making are the use of real cases. They are facts. They help people to recall the issues that are related to them and then also help them to engage in real explicit discussion. We also found that small groups are preferred; they require that everybody be part of the discussion and be an active, thinking person. A sample ethics curriculum would include setting up a scenario, something that makes people take note of situations that they may never have thought of being an ethical issue.

We may think that the climate has changed because of business ethics, but business ethics fail in the face of healthcare ethics because we deal with patient vulnerability. You walk into a store to purchase an inexpensive VCR and come out with an expensive one and say, “That was a bait and switch, but, okay, ‘buyer beware’.” In our position, however, patients are vulnerable and we have the responsibility to make sure that we don’t play on that vulnerability. Ethical principles are the standard principles that we all use, the things that we hang our hats on, but they don’t provide us with everything that we need to make a decision. Beyond ethics are virtues and the core values that have been developed for physical therapists.

I deal with core values everyday. My son was just sent to Iraq for the third time. Every time he is over there, the first thing I do when I get up in the morning is to listen to the news. I have this sinking feeling when I turn it on. I don’t want to hear that anybody was killed. I may hear that some other mother’s child was killed, and then I will feel really badly about the fact that I am relieved, and that it affected somebody else. Across the world, there is a mom strapping explosives onto her child and sending him out to have a good day. Is she wrong or am I wrong? We are just different. There are definitely different societal expectations and decision-making taking place.

Other variables in decision-making are religion, age and education. One of the things that we have tried to develop is a model, a template for looking at a problem and making a decision. One involves looking at an ethical problem from three different perspectives. Is it something that is a relationship between two individuals? Is it something where the organization is calling the shots and the person is not as autonomous as he could be? Is it something that society is asking people to do or is it part of the societal norm?

The next part is the individual learning process, what we do as individuals in terms of making this decision. First is moral sensitivity, recognizing that something is making you uncomfortable. You may not be able to define the problem, but just know that something doesn’t make you feel right. Judgment is the ability to differentiate between right and wrong. That leads to knowing what motivates you to do the different things that you do. Courage is the ability to implement action, even if there may be collateral damages.

The last issue is the ethical situation. Is it an issue or a problem; is it something that challenges your values? You may know the right course of action, but it’s blocked by a barrier. You know that you want to be able to treat a patient during lunch time, for example, but your institution does not allow anybody to use the facilities during that hour. As a result, this patient can’t be treated because that’s the only time he has available.

We need to look to the Federation, perhaps, to develop regional courses to train folks to take courses back to their own jurisdiction, or perhaps to develop national courses. Would it be reasonable for people to send licensees to a regional course? Would it be reasonable to send them to a national course? We do have to do something.

Note: The FSBPT 2007 Delegate Assembly passed the following motion regarding ethics courses:

DEL-07-10
Motion adopted as amended by Nebraska.
Ethics Course
Proposed by: Arizona, California

Motion:
To charge the FSBPT Board of Directors to study the availability of ethics courses specific to the profession of physical therapy and the effectiveness of the delivery method for remediation and/or continuing competency with a report to the 2008 Delegate Assembly.

Rationale:
Many jurisdictions utilize ethics courses either for continuing education or remediation as part of disciplinary action. Providing information on availability and effectiveness of delivery methodology will allow the Delegate Assembly to consider whether a course(s) should be developed by FSBPT.