Is there a difference between legal and ethical stuff?
A. What is ethics exactly?
A doctor is not a physician. Well, from the perspective of a doctor, there are certain obligations that take a priority especially when they have to respond to a pandemic. A pandemic is a special circumstance and cannot be equated with normal times, where everything is going fine and there is absolutely no problem.
There is a term called as "super-ero-gatory obligations". In the context of ethics, an act is considered as super-ero-gatory, if it good, but a doctor is not morally required to do so. If we take the example of an opt-out policy, then a doctor who is about to exercise this option will think about his ten thousand duties, responsibilities and obligations that are competing, even when he or she is in the middle of a ward with SARS patients.
Amidst all this commotion and chaos, the doctor will think if his / her decision is desirable or not? A doctor will be tensed because most of the times, his / her colleagues and friends will say that, this decision that they are going to take might be ethically justifiable, but may not be desirable.
This is the basic reason which strengthens the argument that, a doctor is justified in opting out of a specific task, as long as they feel that their sacrifices and increased efforts, especially during a pandemic are not compensated with reciprocal obligations in value from the society. It is obvious that the doctor will feel that, the reciprocal obligations that is owed by the society and the colleagues is not enough and adequate. The other word for this phenomenon is "proportionate". From a data protection perspective, a decision of a Data Protection Officer ("DPO") shall be treated as proportionate, when they shall pronounce a judgment or a decision, keeping in mind that, there was no other less intrusive ways in which a specific new technology could have been introduced.
The question that arises from this phenomena, from a scholar's perspective, is that, is there an alternative option to the opt out policy? If there is no alternative option, then there shall be no doctors to meet the demand of medical aid in the middle of a epidemic. If there is a pandemic, then an emerging technology such as 5G remote surgery can only come to rescue after a DPIA in countries where there is a need for taking help of doctors that are not present in the same territory as the patient. From a solution provider's perspective, the solution to this problem is to explicitly define the reciprocal obligations that others owe it to the doctors. Having a framework that lays down the minimum obligations would encourage doctors in making a self assessment exercise and coming to a conclusion as to their own professional standards that they can abide by.
The following list lays out the key reciprocal obligations, broadly, that is owed by the society to the doctors:
- Adequate indemnity insurance and licensing arrangements can be provided by the medical bodies, from a professional obligation perspective.
- Personal protective equipment, equipment, training and clinical supervision to be provided by the employers, who shall be the principal of doctors in the "principal-agent" scenario.
- Sustainable working hours and adequate rest to be mandated by governing bodies and enforced by employers.
- Priority testing for those who develop symptoms. In my opinion, it might seem that, the specific group that is being referred to here for priority testing are patients. However, in reality, doctors should and must be prioritized above other groups, when the question is about testing. If doctors are safe, only then should priority shift from them to the following two groups of society, namely: (a) in-patients, i.e., a patient who lives in hospital while under treatment; and (b) elderly when they stay in care homes.
- Access to best available medical care if they get sick. The literature states that, access to available medical care in the form of intensive care units ("ICU") for people who are in the stage of acquiring COVID 19 in the future cannot guaranteed, and thus cannot be prioritized. In my opinion, it would be good if such people could imbibe the spirit of "precaution is better than cure".
- Sufficient sick pay for doctors who have acquired illness or have faced the situation being burnout because of occupational hazards. This may or may not have been caused due to Covid 19. There is a possibility that, other environments might contribute to the emergence of occupational risks.
- Consideration of wider social factors. When social factors are not favorable, then the employer of the doctor is obligated to provide for (a) childcare; (b) facilities that show care, like arranging for transport to the work if the doctors are affected by the closure of public transport or travelling in public transport leads to the doctor spending many many hours in the transport, as opposed to actually responding to a pandemic.
8. Acknowledgement of contribution and service by employers, governments, media and the public : The general practice has been that doctors are blamed when consequences are bad. However, they can be acknowledged by the above stakeholders for putting in extra hours, that can go miles in keeping them sane.
9. Post-pandemic mental health support and leave to be provided by the employers : This is the most important obligation that the society owes to the doctors. The basic assumption behind this statement is that, front line workers suffer long term effects and increasing burnout situation because of them not being allowed annual leave during the pandemic. As a recommendation, the employers of the doctors and healthcare professionals must not impose the condition that, doctors are required to return to the healthcare sector and provide their services as if everything is normal. Instead, the employers would have to prioritize annual leave once the pandemic is over, and the normalcy is restored.
B. What happens if such obligations are unmet?
In the United Kingdom, the doctors are questioning if and whether they can refuse to treat patients, if they do not have adequate PPE. This is because the professional guidelines in the UK that applies to doctors is not clear and is thus ambiguous.
The professional body who generally takes care of representing the views of doctors in the United Kingdom is called as the General Medical Council ("GMC"). GMC has established a set of Good Medical Practice. As per this set of guidelines, doctors cannot merely refuse to treat patients blatantly. It is preferable approach if doctors explore the possibility of reducing / minimizing the risk before providing treatment. For instance, doctors can escalate a concern to their employers.
It is not as simple as it seems. Escalation of concerns to employers will nevertheless put the burden on the doctors to make a decision that has to be moral. As per literature, this structural problem might lead to structural injustices on the doctor. This statement assumes a reality that, a doctor may be too easily pressurized into finding themselves in the middle of an environment which is characterized by unacceptable working conditions by employers.
This problem can be solved by the doctor by opting out from specific tasks that is proportionate to the unmet obligation by the society. For instance, a doctor that is allotted a task in an emergency matter in the middle of the night or at odd hours, and this task requires the doctor to wear a FFP3 respirator mask. However, the doctor is asked to manage the situation by using a fluid resistant surgical mask, purely because the employer has it readily available. In such a situation, what is proportionate and what is disproportionate? From the perspective of a DPO, the decision of the doctor may be considered as proportionate to refuse to perform that specific procedure, that cannot be performed without using that necessary mask. It shall be a disproportionate decision if doctor completely refuses to provide any kind of care to a patient.
A similar approach can be taken for all the tasks related to healthcare provisions. For instance, if there is a shortage of PPE, then it may be proportionate decision if the doctor refuses to operate because not wearing a gown will leave them at a greater risk of infection from the virus.
C. What is reciprocal obligation?
The obligations that the patient and the employer of the doctor owes to the doctor is called as reciprocal obligation. This stresses on the pre-requisites of a good patient as opposed to a good doctor. For instance, a patient may be considered a good patient if it informs the doctor about the risks of infection that it has identified.
It is important to note that, the basis of reciprocal obligation is based on the aspirational inter-relationships between the doctor - patient and doctor - its employer. It is not based on what the current behavior of the patient is. Rather, it is about the potential behavior of the patient and the ways in which the future conduct between these two actors looks like. This is because, the rationale is to prevent the doctor from becoming the patient. This can be done by trying to follow measures such as social distancing and wearing a face cover, like a mask.
D. When does duty to care start and when does it end?
In the UK, the duty to care for the society starts in medical school, when they are upskilling themselves. This does not mean that they should be burdened with the same level of psychological and emotional distress that licensed doctors can face to an extent, because of the resilience factor.
People who have retired recently and senior medical students were asked to volunteer in the response mechanism against COVID 19. This clearly extends this requirement to care for patients not only as a professional obligation, but also as a vocational obligation.
For people who have retired or have chosen to leave medicine should not feel that they have a duty to return and the only way that they can return is in the form of being a doctor. No person should be burdened with the expectation that their duty to care is a lifelong commitment and can also last beyond professional career.
Retirees are extremely skilled. The duty that they perform can be termed as "duty of easy rescue". In simple terms, this means that, one is morally obligated to save a life or prevent something bad from happening, where the cost that will be incurred to such a person will be negligible or has some importance morally.
The UK encourages the students to start the vocational obligation early via internships, via providing training at a subsidized price. Last but not the least, the healthcare ecosystem is required to be sensitive about the moral, psychological and the extent to which such professionals, be it retirees or medical students, are open to accept personal risk and physical risk, namely:
a. The level of personal risk of serious illness;
b. Personal circumstances;
c. Specialty;
d. Career stage; and
e. Reciprocal obligations that are met; and
f. Reciprocal obligations that are unmet.