Academic journal article The Hastings Center Report

Clinical Ethics Consulting and Conflict of Interest: Structurally Intertwined: Clinical Ethical Consultants Are Subject to an Unavoidable Conflict of Interest. Their Work Requires That They Be Independent, but Incentives Attached to Their Role Chip Relentlessly at Independence. This Is a Problem without Any Solution, but It Can at Least Be Ameliorated through Careful Management

Academic journal article The Hastings Center Report

Clinical Ethics Consulting and Conflict of Interest: Structurally Intertwined: Clinical Ethical Consultants Are Subject to an Unavoidable Conflict of Interest. Their Work Requires That They Be Independent, but Incentives Attached to Their Role Chip Relentlessly at Independence. This Is a Problem without Any Solution, but It Can at Least Be Ameliorated through Careful Management

Article excerpt

The thesis of this paper is both straightforward and challenging: clinical ethics consulting embroils the clinical ethicist in a structural conflict of interest. One cannot properly fulfill the function and activities of a clinical ethicist without having one's judgment damaged by conflicting interests.

This conclusion has unsettling implications, but it follows from a careful analysis of the nature of conflict of interest and the correct role of clinical ethics consultants. Both of these topics have been thoroughly studied over the years; in what follows I aim to show how this work intersects. What consultants should be doing--the kinds of judgments they should be formulating, expressing, and acting upon--is structurally in conflict with the incentives typically attached to this role, chief among which is that ethics consultants are paid for their judgment. As I will argue, however, other, more intangible benefits may be an even greater threat.

The depth of the problem struck me most forcefully when I was working up a lecture for internal medicine physicians on whether pharmaceutical gift-giving damaged physicians' judgment. Part of my preparation included an article by Dana Katz, Arthur Caplan, and Jon Merz asserting that even very small gifts--pens and notepads--posed a serious problem. (1) A series of commentaries followed in which a few physicians disputed the findings, but bioethicists unanimously agreed. Suddenly the irony leapt out: here I was about to be paid--very well-paid--to try to convince physicians they should not accept even a note pad from a Pfizer representative because doing so undercut their independent professional credibility and judgment, and yet somehow my independent role as an educator and consultant was left unsullied.

Conflict of Interest

My message to the physicians was that whether an interest is conflicting has less to do with the material value of the gift than with the subtle ways that giving and receiving alter the relationship, frequently damaging the judgment of both parties. This conclusion--that the effect upon judgment is more important than is the type of gain received--traces back to the analysis of conflict of interest developed by Michael Davis, which over the last twenty years has become the standard source for discussions of conflicts of interest. (2) Davis defines a conflict of interest as a situation in which a person is in a relationship that requires her to use her judgment to act or to advise on another's behalf and, because of the circumstances of that situation, her judgment has been negatively altered by some personal interest. (3) The "relationship" in question is often that of professional and client, but as Davis is careful to show, it need not be. (4) A wide range of associations--formal or informal, short- or long-term--include expectations that one or both parties will act or advise with the other's best interest at heart. Family members, friends, caregivers, mentors--and clinical ethicists--all have fiduciary expectations as part of the core of their relationships. And each of these relationships can be damaged when personal interest damages either of the parties' judgment.

What counts as a judgment-damaging "interest"? Everyone agrees that significant material gain is a threat, as reflected in the various governmental and news media requirements that gifts worth more than some nominal amount must be reported or outright declined. Anything below that amount is seen as not sufficiently tempting to be a threat. This was also the position taken by most of the physicians with whom I was working: large gifts too easily incline one to act for reasons other than client benefit, while very small ones have no such impact. Nell Luebke echoes this approach in his critique of Davis's early work. Luebke held that "interest" must be defined narrowly (specifically, as some material good or claim of the professional's that is in competition with a comparable good or claim held by the client). …

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