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Interests, Obligations, and Justice: Some Notes Toward an Ethic of Managed Care

In their commentary on the recent report on the ethics of managed care by the American Medical Association's (AMA) Council on Ethical and Judicial Affairs, Miles and Koepp offer two salient criticisms: For one thing, they fault the Council for not disclosing how intellectual, legal, and financial conflicts of interest may have influenced the Council's ethical opinions. Specifically, they point to the AMA's customary interest in preserving the fee-for-service system and in avoiding potential litigation that might arise from strictures imposed on rulings of the Council on Ethical and Judicial Affairs by the Federal Trade Commission (FTC). For another, Miles and Koepp decry the Council's focus on the ethical obligations of individual physicians to their own patients to the neglect of their obligations to the healthcare plan, the other patients in the plan, and to society at large. Specifically, they lament the lack of a well-developed ethic of distributive justice and collective governance suitable to the economic exigencies of allocating resources. In this commentary, I wish to examine more closely two issues raised by Miles and Koepp's critique. The first issue is the assumption that the existence of interests--and, therefore, the possibility of conflicts of interest--is relevant in assigning validity to the conclusions of an ethical deliberation and that full disclosure is helpful in determining that validity. The second issue is the proper ethical relationship that should obtain between the obligations of physicians, to their own patients with whom they have a covenant of trust, and the obligations they incur to a health plan or to society when they sign a contract as a participating physician. This is part of the more general question of the proper relationship between commutative and distributive justice when they are in conflict. A third issue, which neither Miles and Koepp nor I address is the ethical propriety or moral legitimacy of restraints imposed by the FTC on the ethical guidelines of a profession. Should the FTC's legal hegemony over competition overrule the integrity of professional ethics? Should it make any difference in the Council's ethical opinions? This is a subject for more extended treatment than I can give it here. Suffice it to say that the rulings of the FTC are legal, not ethical, rulings. As such, their validity must be subjected to the same critical examination as other ethical statements. The mere existence of an FTC ruling, its practical consequences notwithstanding, is no warrant for abandoning an ethical principle. This is particularly the case since the FTC has made the protection of competition its icon and endowed it with a quasi-ethical authority. My commentary is not an item-by-item apologia for the Council's report. I do agree with, and wish to defend, its emphasis on the primacy of the physician's obligation to his or her patient even in a managed-care system. But I also agree with Miles and Koepp that a fuller development of an ethic of distributive justice is in order. I suspect they would frame their ethic differently than would I. I do not agree with them, however, that disclosure of interests would help to judge the ethical validity of the Council's opinions, except in a limited way. Lest I be suspected of a conflict of interest, I must state at the outset that I had no part in drafting the Council's report and that I have no personal or intellectual commitment to fee-for-service per se. The report did cite a work of mine, however, and I do have an interest in clarifying its relevance to the issues in question.