Physicians in the double role of treatment provider and expert in light of principle-based social insurance medical ethics
Hans Magnus Sollia & António Barbosa da Silvab
b Ansgar University College and Theological Seminary, Kristiansand, Norway, dasilva@angarskolen.no
GPs serve in a double role of treatment
provider and expert in certain social insurance
systems, such as the Norwegian one. Some physicians
assert that the ethical obligations of the two roles
conflict with each other. The objective of this
article is to show that social insurance medical
ethics (SIME), which are based on recognised
principles of medical ethics, unite the physicians’
obligations associated with these roles. The method
applied is a medical ethics conceptual analysis. The
material consists of literature on normative SIME.
The study shows that SIME expands the role of the
treatment provider to a wider societal context.
Here, physicians should attempt to balance the
perspectives of sympathy with empathy, as treatment
providers, with the impartiality in their role as
experts. Five principles of medical ethics are
fundamental. Respect for human dignity is the
overarching principle of medical ethics. The four
others are nonmaleficence, beneficence (including
soft paternalism), autonomy, and social justice. The
article discusses two areas where it is asserted
that the roles of treatment provider and expert
conflict with each other: the application of
beneficence and justice, and the duty of
confidentiality versus the duty to provide
information to the National Insurance service. The
study concludes that there are no basic ethical
conflicts between the two roles. The ethical
problems that may arise when exercising this duality
should be viewed in the same way as other ethical
problems in medicine. Actual application and
balancing of the principles may necessitate
negotiations between patients and physicians.
Introduction
Research conducted in several
welfare states, including Norway, documents
how physicians often view medical
certificates as problematic. This is a
matter of handling disagreements with
patients about whether medical certificates
are warranted or not, deciding the
certificates’ correct duration, assessing
the patient’s capacity for work, and
collaborating with other parties like
employers and the local National Insurance
office. Some physicians believe that
conflicts may arise between the duality of
the roles of patient treatment provider and
expert when dealing with the National
Insurance system (Wynne-Jones, Mallen, Main
and Dunn 2010).
The Medical Ethics Council of
the Norwegian Medical Association found that
the many complaints pertaining to
physicians’ expert statements were often
associated with a lack of clarity in
relation to the role of the physician and
his/her obligations in the situation in
question. The following new rule was
therefore introduced in the Code of Ethics
for Doctors (2015: I. General provisions,
Section 2):
Doctors have different roles as
treatment provider, expert and administrator
of welfare benefits. […] A clear distinction
must be made between their roles of
treatment provider and expert. Doctors are
responsible for providing necessary and
appropriate information about their role and
the purpose of the contact.
A clarification has yet to be
provided of the above-mentioned problem
regarding roles that is rooted in medical
ethics. Mæland’s (2016) guide to social
insurance medicine in Norway is widely used
and outlines a presumably widespread
perception. He considers the roles of the
treatment provider and the expert to be
separate, which calls for different types of
ethics. Mæland (2016: 27) writes the
following about the role of the physician as
an expert:
The ordinary requirements and
rules that govern the physician as a
treatment provider do not apply to [the role
of the expert]. For example, the duty of
confidentiality and the obligation to always
act in the patient's best interests do not
apply (author translation).
Here, he asserts that the role
of the expert is not subject to the ordinary
ethical requirements that govern the
physician as a treatment provider. According
to the quote above, the obligations of the
GP as an expert may conflict with his/her
duties as a treatment provider, for example
between the duty of confidentiality and the
duty to act in the patient's best interests.
We believe that this entails an assertion
that the ethics governing the role of expert
and treatment provider conflict with each
other. The guide we cited elaborates further
on its view by asserting that the physician
as an expert must:
present the medical facts in
the case and provide his/her best assessment
of them, irrespective of whether this is in
the favour or disfavour of the person in
question. […] Seeking to achieve objectivity
and neutrality is thus an ideal for experts.
A medical expert must represent his/her
field and none of the parties (author
translation) (Mæland 2016: 28).
Our interpretation of the
quotes above is that the role of expert
entails ethics which cancel out the
physician's clinical relationship with the
patient in favour of a professionalism which
should be objective and neutral when dealing
with the state and the patient. This cannot
be an ethically satisfactory solution for
GPs. A GP who is an expert on behalf of a
patient he/she has treated can hardly
disregard his/her obligation to protect the
patient’s best interests. GPs are also aware
that objectivity is a controversial topic in
our time (Solli & Barbosa da Silva,
2018). They may agree that expertise
requires them to be objective and impartial
when assessing a person. However,
they also know that expertise cannot be
ethically value-neutral in relation to the
patient's best interests. The guide's view
of duties appears to be at odds with medical
ethics.
This article posits that social
insurance medical ethics (hereinafter SIME),
which is based on recognised principles of
medical ethics, unite the ethical
obligations of physicians in the roles of
treatment provider and expert. SIME allows
the ethical obligations in the dual role of
treatment provider and expert to be
exercised within the frames of principles of
medical ethics, without the obligations
coming into conflict with each other. The
article's starting-point is the relationship
between GPs, patients and the social welfare
regime in a Norwegian context. The article
is presumed to be of interest to the welfare
regimes of other countries where physicians
or other clinicians serve in the dual role
of treatment provider and expert.
Material and method
We searched for
relevant literature on normative
SIME from 1990 until 2016 in the
Medline, Psychinfo, Ethicsweb,
Philpapers and Cochrane databases.
The search terms we used were
‘social security/insurance
medicine’, ‘ethics’, ‘physician’s
role’, ‘disability/work capacity
evaluation’, ‘expert testimony’ and
combinations of these. We found only
seven articles in English, German,
Swedish and Norwegian (Toon 1992;
Bruusgaard 1996; Terum & Nergård
1999; Solli 2003; Solli, Barbosa da
Silva, Lie & Bruusgaard 2005;
Rudebeck 2010; Seger & Nüchtern
2015). We found a further six
sources in a separate archive (WHO
2001; Westrin & Nilstun 2002;
Meland 2005; Solli 2007; Lynöe,
Wessel, Olsson, Alexanderson and
Helgesson 2011; Nüchtern and others
2015). None of these sources
presents a consistent normative
SIME. We also draw on other relevant
ethical literature to achieve the
goals of the article.
Our method is a medical
ethics conceptual analysis used to
clarify ethical principles and
examine how they logically relate to
each other, both in theory and
practice.
Welfare state, work and functioning
First, we would like to place SIME
in a societal context. We view the welfare state
as a democratic compromise between a capitalist,
individualist market economy and a public,
communally-funded and guaranteed distribution of
economic resources. The objective of the welfare
state is to safeguard the welfare of all
citizens, enabling them to lead a reasonably
good life on their own terms, with access to
public goods, liberty, and offering social
justice. The obligations and the rights of the
citizens of the welfare state depend on a
functioning, productive and sustainable economy
(Steigleder 2014). Work is the crux of such an
economy. Most people are expected to meet their
needs through work, and have an obligation to do
so.
From a medical
perspective, work is good for both health
and welfare, if the working conditions are fair.
However, some people are ill or have
disabilities that prevent them from working
(Waddell & Burton 2006: 36-38). We follow
Gough (2017: 185), asserting that from an
ethical perspective, work contributes to
self-respect, cognitive development,
socialisation related to meaningful tasks,
participation in productive work and collective
well-being. SIME follows WHO's International
Classification
of Functioning, Disability and Health
(2001) (hereinafter ICF) by focusing
particularly on patients' health in terms of
functional ability and social participation,
including labour participation.
From this point of view, all
physicians should focus on functional capacity
and capacity for work in their role as treatment
provider. Special to the role of the expert is
that the physician has a mandate from the
National Insurance Service (hereinafter NIS) to
assess patients’ functional capacity and
capacity for work in terms of the rights and
requirements in welfare legislation. This wider
societal perspective expands the obligations of
the role of treatment provider (Rudebeck 2010).
Balancing the
perspectives of sympathy and impartiality
In order to integrate the ethics of the role of
clinical treatment provider with the ethics of
the role of expert, it is necessary to consider
and familiarise oneself with the importance of
the perspectives of sympathy and impartiality in
human social life. Studies of the natural
history of human morality have shown that the
two different perspectives have been fundamental
to the evolution of cooperation among humans
(Tomasello 2016: 1-5). These perspectives are
also fundamental in medical ethics (Beauchamp
& Childress 2013: 92-4; Solli 2007: 230f).
The perspective of sympathy dominates personal
relationships such as families. ‘The capacity
for sympathy enables us to enter into, however
imperfectly, the thoughts and feelings of
another being. Through sympathy, we form a
concern for the other’s welfare’ (Beauchamp
& Childress 2013: 92). Sympathy is based on
empathy and compassion and is often used in
clinical work, including clinical social
insurance medicine. Empathy is the ability to
understand and share the feelings of another. A
perspective of sympathy, with empathy, is the
main perspective of the treatment provider.
However, society also needs a
perspective that requires us to take equal
consideration of each other's interests. This is
the perspective of fairness or justice, which
includes the perspective of impartiality. The
perspective of impartiality covers decisions
made by individuals working together in ways
that foster the common good, while also
attempting to consider each person's special
interests, feelings and basic needs equally.
Decisions on the impartial distribution of
burdens and benefits should therefore be made at
some mental and emotional distance from any
existing personal relations to the situation in
question. The perspective of impartiality is the
main perspective of the GP as an expert. Taking
a step back makes it possible to view a
patient's situation dispassionately and to
consider their everyday life, working life and
the context in question. An expert assessment
should be impartial and not depend on which
specific person is involved.
German social medicine uses the
concept of empathy to explain the relationship
between the perspectives of sympathy and
impartiality: ‘Empathy and interest in the
individual are a prerequisite of expertise for
social insurance medicine. They are not in
opposition to the neutrality of the expert (=
impartiality, author translation and remark)
(Nüchtern and others 2015: 582f).
A SIME based on principles
We will now review a recognised system of medical ethics that we believe could provide a foundation for SIME. Westrin and Nilstun (2002) assert that SIME should consist of ethical principles. Ethical principles protect and defend corresponding ethical values. We draw on Beauchamp and Childress’ (2013) renowned principles of biomedical ethics, as proposed by Seger and Nüchtern (2015). We must note that principles are not absolute standards that do not allow compromises with other principles. Principles are abstract and must be elaborated on in order to provide guidance in a given situation. It must also be possible to relate them to other relevant principles, and an assessment must be made of whether an actual conflict exists between them or whether relevant principles should be balanced by designating one principle as taking precedence over the others. The four basic principles of medical ethics are: nonmaleficence, beneficence, autonomy and justice (Beauchamp & Childress 2013). These principles defend some basic ethical values in the welfare state. Needs satisfaction in the welfare state is addressed through the first two principles, which state that treatment must not harm the patient and that it should cover the patient's medical needs. Liberty is safeguarded by the principle of respecting the patient's autonomy and fundamental rights. The basic realisation of justice in social insurance is social justice, as we explain it below. We will add a fifth principle, the principle of human dignity, in line with UNESCO's Universal Declaration on Bioethics and Human Rights (UNESCO 2005: art. 3). Human rights are now entrenched in welfare law. They belong to ‘the core values that are and will be fundamental in Norwegian society’ (author translation) (Kjønstad, Syse and Kjelland 2017: 89). We will now provide a brief account of the five principles cited in a SIME context.
The principle of human dignity
The
Code
of Ethics for
Doctors (2015:
I General
provisions,
Section 1)
states, ‘A
doctor shall
base his
practice on
respect for
fundamental
human rights’.
In clinical
practice, respect for human dignity or human rights means encountering,
viewing,
listening to
and
acknowledging
the patient as
having the
same dignity
that is
inherent in
all people.
Respect for
human dignity
is linked to
respect for
individual
identity,
because all
people have a
unique
identity
(Nordenfelt
2004). The
individual’s
free choices
in life should
therefore be
respected.
Dignity,
identity and
integrity are
closely
linked, so
that to
violate one of
them is to
violate the
others (Tranøy
2005: 38).
Human
rights
give patients
the right to
participate in
decisions
regarding
themselves.
The first step
in
participation
is to acknowledge
the patient's
perspective.
This means,
for example,
that the
physician
checks whether
he/she has
understood the
patient
correctly.
Such practices
have proven to
provide room
for
disagreement
between the
patient and
the physician
without this
resulting in a
conflict
between them
(Steihaug,
Gulbrandsen
and Werner
2012). In
social
insurance
medicine, the
physician and
patient may,
for example,
disagree on
the
physician's
assessments
regarding the
patient's
future
capacity for
work. We will
elaborate on
steps related
to
participation
regarding the
follow-up of
people on sick
leave and the
writing of
certificates
below.
The
ICF
asserts a
human right
that is often
neglected:
‘the full
participation
of people with
disabilities
in all areas
of social
life’ (WHO
2001: 20).
Physicians
should also
work to
promote their
disabled
patients’
participation
in working
life and other
social life.
Nonmaleficience
The norm to do no harm to the patient is also necessary in social insurance medicine. Perhaps most importantly, the physician should refrain from intervening in ways that may have a detrimental effect on the patient's capacity for work (Waddell & Burton 2006). Such harm may be done if the physician puts a patient on full sick leave indefinitely when an illness is not serious, and the physician has no strategy for the patient to return to work. In the event of serious illness, it is important for experts to avoid writing a more negative prognosis on a certificate than what was communicated to the patient. The physician should also avoid writing medical certificates that are so uninformative that the patient risks having a legitimate case denied by the NIS on the wrong grounds. The ideal is that social insurance medical practice must not damage the relationship between physicians and patients (Solli 2007: 377). Sick leave is an example of a conflict that could arise between the GP and patient. The conflict might be about how the physician and the patient view the situation differently in relation to the legal rules. When ethics are involved, a conflict between ethical principles is unlikely, but views may differ on how to apply them to the situation in question. Communication skills are important in such situations (Silverman, Kurtz and Draper 2013).
Beneficence
Patient needs are considered through the physician’s obligation to contribute to the patient’s welfare from a medical perspective, which implies the principle of beneficence. Beneficence is the established term for physicians' obligation to help their patients by virtue of their role as treatment provider (Beauchamp & Childress 2013: 202-203). The obligation is often referred to as acting in the patient's best interests or, in other words, meeting their medical needs. Two relevant needs in social insurance medicine are receiving clinical help to improve one's functional ability and capacity for work, and receiving an expert assessment of whether one meets the medical requirements for receiving welfare benefits, which safeguard the right to financial security. However, it is important to be aware that meeting a need in the short term (like granting a disability benefit and thus possible passivisation) may be detrimental in terms of meeting other basic needs in the long term (like physical activity and participation in society) (Bruusgaard 1996). This is why it is important in some situations for the physician to bring up the question of what constitutes the patient's best interests in the long term .
Paternalism
An important ethical
question is
whether the
patient, the
physician or
the
authorities
should
determine what
is in the
patient's best
interests or
what they
need. Kjønstad
and others
(2017: 29)
write: ‘To a
great extent,
the welfare
state is based
on paternalistic
thinking.
This is often
based on the
idea that
people do not
always know
what is best
for
themselves,
and therefore
are not able
to protect
their own
interests’
(author
translation).
Dworkin (1999:
115) defines
paternalism as
‘the
interference
with a
person’s
liberty of
action
justified by
reasons
referring
exclusively to
the welfare,
good,
happiness,
needs,
interests or
values of the
person being
coerced’.
Dworkin (1999:
128) also
asserts that
paternalistic
legislation is
legitimate as
long as the
authorities
present
evidence of
the harmful
effects (or
the positive
consequences)
to be avoided
(or achieved)
by means of
professional
and political
interventions.
Similar
reasoning must
be applied to
social
insurance. An
open and
critical
social debate
should be able
to protect
citizens'
freedom of
action within
paternalistic
welfare
legislation.
We believe
that a certain
level of
paternalism on
the part of
the
authorities,
as an
expression of
how democracy
views what is
in the best
interests of
citizens and
the community,
can be
defended
ethically due
to the common
benefits
afforded by
welfare. One
example is the
current view
that having as
many people as
possible
continue
working for as
long as
possible until
a specific
retirement age
(work-first
strategy) is
in the best
interests of
individual
citizens and
the community.
A comment regarding 'advocacy'
As experts, physicians may exaggerate a patient's reduced functional ability in a certificate to achieve what they believe to be in the patients' best interests – a welfare benefit. A physician who describes a patient's restricted functional ability in terms that are more serious than is the case is called the patient’s advocate (Solli 2007: 353). Such a breach of the requirement of professionalism and accuracy when writing certificates cannot be justified as beneficence or as ethical in other ways
In medical ethics,
consideration
of the
patient's
liberty is
formulated as
the principle
of
autonomy (Beauchamp
&
Childress
2013). This
principle
means respect
for the
patient's
right to make
decisions
regarding what
is important
to his/her
life. However,
in clinical
practice
‘autonomy is
not likely to
mean anything
other than
co-determination.
Patients
cannot order
their
physician to
do anything
that the
physician
finds
professionally
or ethically
indefensible
[…]’ (author
translation)
(Tranøy 2005:
33).
Physicians
also have
professional
autonomy which
must be
respected. We
will now
discuss the
place of co-determination
in social
insurance
medical
practice.
In
medical ethics, consideration of the patient's
liberty is formulated as the principle
of autonomy (Beauchamp & Childress
2013). This principle means respect for the
patient's right to make decisions regarding
what is important to his/her life. However, in
clinical practice ‘autonomy is not likely to
mean anything other than co-determination.
Patients cannot order their physician to do
anything that the physician finds
professionally or ethically indefensible […]’
(author translation) (Tranøy 2005: 33).
Physicians also have professional autonomy
which must be respected. We will now discuss
the place of co-determination
in social insurance medical practice.
Politically,
autonomy often means independence and
self-determination. However, autonomy is also
defined relationally, based on people living
in social relationships and depending on
societal structures (Beauchamp & Childress
2013: 106). Relational
autonomy is the ability to make
decisions for oneself, through the network of
social relationships in which people live
(Gulbrandsen and others 2016; Jennings 2016;
Meland 2005). Meland (2005: 3443) writes that
‘as people, it is possible to make one's own
decisions, at the same time that we mutually
depend on each other’ (author translation).
One challenge associated with respecting
relational autonomy is distinguishing between
the relations that promote a person's
independence in a community and the ones that
do not (Jennings 2016).
In
the event of illness, both the ability to make
decisions and to envisage the future can be
impacted negatively. We believe that
relational autonomy is clinically important,
because in a good relationship, a physician
should not merely respect the patient's
autonomy but should also attempt to foster
autonomy in the form of co-determination by
offering support and encouragement
(Gulbrandsen and others 2016). SIME research
has also shown that respect for autonomy can
improve a patient's self-esteem and ability to
accomplish more (Lynöe and others 2011).
Social insurance medicine's shared decision-making model
Research has developed a three-step model for clinical practice in order to achieve co-determination between patient and clinicians. This shared decision-making model is based on the relational autonomy concept (Elwyn and others 2012; Gulbrandsen and others 2016). A similar model has been adopted in Norway, and is known as samvalgsmodellen (Ministry of Health and Care Services 2015: 60). Table 1 describes how the shared decision-making model is used to follow up with people on long-term sick leave. The shared decision-making model improves patients' opportunities for taking responsibility for their own affairs.
Table 1. Social insurance medicine's shared decision-making model used for follow-up with patients on long-term sick leave
According to the shared decision-making model, physicians do not only provide information about different options. Physicians can also provide specific advice, based on their knowledge of the patient's abilities and situation. Ethically, it is not problematic to give advice or attempt to convince the patient that some choices are better than others, as long as this takes place in an open dialogue where the physician ‘states his/her view [and] the patient receives honest answers to his/her questions’ (author translation) (Pedersen, Hofmann and Mangset 2007:1646).
Let us consider an example: A patient believes that disability pension is what is best for her. The physician may then advise the patient to envision whether this would also be true in a couple of years’ time. The physician may go even further and attempt to convince the patient that it would be best for her to delay applying for a disability pension. The physician could then be called paternalistic in the soft sense of the term. ‘Soft paternalism means to influence someone in a way that improves their ability to realise their own goals’ (author translation) (Wifstad 2013: 135). Even though the patient has received paternalistic advice, she may maintain her right to co-determination by making her own decision as to whether to accept the advice or not.
Social justice
Each
patient
at a
physician's
surgery or
visitor to a
National
Insurance
office should
be ‘treated
justly’ in the
difficult
situation
he/she might
be facing.
However, this
can be
problematic
because the
person must
not only be
considered an
individual in
isolation, but
also a member
of and
participant in
a social
community.
Justice is
about evening
out competing
interests,
needs, rights,
burdens or
obligations
between people
who
collectively
constitute a
society
(Beauchamp
&
Childress
2013; Solli
2007: 230f).
Justice is
thus a complex
concept.
Justice theory
states that
both a formal
principle
of justice
and one or
more material
criteria
must be met at
the same time
in order to
ascertain how
to treat
people equally
(Beauchamp
&
Childress
2013: 250-53).
Arbitrariness
is the
counterpart to
justice (Solli
2007: 232f).
Aristotle
formulated
the formal
concept of
justice in a
way that is
still valid:
‘Equals must
be treated
equally, and
unequals must
be treated
unequally’
(Beauchamp
&
Childress
2013: 250).
This formal
principle of
justice is
abstract – it
says nothing
about the
material
criteria that
should apply
to fair
distribution.
However, it
states that
the person
whose
interests are
in question
should be
treated
impartially.
Impartiality
is a criterion
of formal
justice (Table
2).
Social justice and its three forms in the National Insurance system
The idea of the form of
justice called
social
justice
arose during
the Industrial
Revolution at
the end of the
19th century
and the
beginning of
the 20th.
Social justice
includes the
following
characteristics:
a) It
addresses a
defined social
community,
often the
nation state,
where the
question of
fair
distribution
of goods is
brought up; b)
Established
institutions –
like the NIS –
are set up to
address this
question in
such a way
that they
impact the
lives of
individuals;
and c) A state
must exist
that can
change social
institutions
and
legislation
when necessary
so that they
best serve the
people, in
line with the
ideas of
justice
supported by
the citizens
(Miller 1999:
2-7). In a
Norwegian
context, the
National
Insurance Act
(1997) is a
core element
of social
justice. We
will now
present the
three forms of
material
justice in the
National
Insurance
system that
together
constitute its
social
justice. They
are compensatory
justice, distributive/redistributive justice
and justice
as application
of legal
rules. All
the
forms use the
formal
principle of
justice as a
necessary
prerequisite
for the
particular
form of
justice.
Table 2. The concept
of social
justice in the
National
Insurance
system
Compensatory justice
Compensatory justice calls
for people to
be granted
compensation
when they
incur an
injury or are
disadvantaged.
When workers
are injured or
sick, and
therefore
unable to
work, they
must receive
compensation.
The material
criterion is personal injury (Solli 2007:
234) (Table
2).
Distributive/redistributive justice
Three often used
distribution
criteria are:
need,
equality and
desert
(Solli and
others 2005),
see Table 2.
They can be
found in the
three purposes
in Section 1-1
of the
National
Insurance Act.
The first
purpose is ‘to
provide
financial
security by
securing an
income and
providing
compensation
for extra
expenses’
(author
translation)
in many of the
situations
citizens
encounter:
‘unemployment,
pregnancy and
childbirth,
sole
responsibility
for children,
illness and
injury,
disability,
old age and
death’ (author
translation).
The criterion
need is
expressed
here. Kjønstad
and others
(2017: 40)
write that ‘in
practice this
securing of income for subsistence is the
main objective
of the
National
Insurance
system’
(author
translation).
In the
practice of
social
insurance
medicine,
chronic drug
addicts, for
example, may
have complex
needs, along
with unknown
medical
ailments. The
need criterion
motivates
physicians to
make a greater
effort to
search for
relevant
medical facts
about
patients'
medical
conditions and
thus help
safeguard
their rights.
The second purpose is to
contribute to
‘equalising
income and
living
conditions
during
people's lives
and between
groups of
people’
(author
translation).
Insurance and
fair economic
redistribution
come into the
picture here.
The criterion
equality
is
expressed here
in terms of
financial
distribution
and
redistribution.
The third purpose is to
‘help people
to help
themselves in
order for
people to be
able to
provide for
themselves and
manage on
their own as
best possible
on an everyday
basis’ (author
translation).
There are two
aspects to
this purpose.
The first
aspect ‘to
help
themselves’ is
a financial
principle
related to
persons
meeting their
own needs,
usually
through their
own work
(Solli 2007:
297f). This
principle of
self-help is
closely
‘linked to the
work-first
strategy and
the principle
of an
inclusive
working life’ (author translation) (Kjønstad
and others
2017: 40).
‘Self-help’ is
a
specification
of the
distribution
according to
the desert
criterion. The
size of the
benefit
depends on the
efforts made
by the citizen
to procure an
income and pay
taxes. The
second aspect
entails people
receiving help
to improve
their
capacity for
work when
needed, both
in the form of
work-related
rehabilitation
provided by
the health
care services
and measures
organised by
the NIS. This
aspect is
ambiguous. On
the one hand,
an offer of
help
presupposes a
requirement
that people
should try to
get back to
work. Work
training
should also be
attempted
several times.
On the other
hand,
citizens' need
for help with
work training
must be met.
Improving a
person's
capacity for
work partly
implies a
requirement of
desert, partly
receiving help
(Solli and
others 2005).
Justice as application of legal rules
It is of particular
importance for citizen welfare that
justice be based on legal rules (Kjønstad
and others 2017). The most important legal
criterion in social insurance medicine is
‘illness, injury or defect that is the
main cause of loss of the capacity for
work’ (Table 2) (National Insurance Act
1997: Section 12-6). It is important for
physicians to have some knowledge of legal
rules and how they should be applied in
the actual clinical situation.
Writing medical certificates
Some physicians invite
patients on
long-term sick
leave to give
input to the
writing of
medical
certificates
about them.
One GP
describes the
practice as
follows:
The physician and the
patient
collaborate on
describing and
assessing the
patient's
functional
ability. The
physician can
be honest and
clear in
his/her
assessments,
both in
relation to
the patient
and the
National
Insurance
office. The
patient is
given an
opportunity to
discuss any of
the
physician's
findings that
he/she does
not
understand,
and may give
input to the
rewriting of
any points
he/she does
not agree
with. The
physician
displays
respect by
showing the
patient the
certificate
and discussing
the
information
that will be
provided
(Harald
Elvsåshagen,
personal
communication,
7 June 2018).
The quote allows us to make
the following
comments. The
patient is
invited to
help decide
what to write
about the
illness,
future
treatment,
functional
ability and
capacity for
work, and
his/her
prospects. The
physician
upholds the
patient's
dignity by
clearly
acknowledging
his/her
perspective
and including
the patient in
a process that
has to do with
him/herself.
The physician
consciously
attempts to
act truthfully
and as
impartially as
possible both
towards the
patient and
the NIS. The
physician's
practice
preserves the
physician-patient
relationship
if the
patient's
application
for a benefit
from the NIS
is denied. In
this way, the
physician
supports the
principle of
nonmaleficence.
Ultimately,
the patient
should decide
whether to
apply for a
benefit or
not. This is
how the
principle of
co-determination
is followed.
In this
complex
situation, the
physician
should seek to
protect the
patient's best
interests. In
the role of
expert, the
physician is a
competent
professional
who decides
what to put in
the
certificate.
Respect also means that
physicians are
open to
different ways
of dealing
with issues
that may be
difficult,
like the
requirement of
a medical
condition. GPs
can:
-
Describe
the history of
the patient’s
ailments and
current
status, based
on their
knowledge of
the patient,
and leave it
to the NIS to
determine
whether the
requirement of
a medical
condition has
been met or
not,
-
In
the event of a
disagreement
regarding the
medical
condition,
acknowledge
the patient's
opinion and
agree that
views can
differ on the
patient's
condition. The
physician will
still write
what he/she
thinks in the
certificate,
but can record
the
disagreement.
The patient is
encouraged to
present
his/her view
in his/her
self-declaration
to the NIS.
-
Refer
the patient to
a specialist
for a second
opinion. The
trust between
the patient
and the
physician can
be preserved
this way.
The importance of professional standards
Most importantly, the
certificate
must be
objective and
verifiable
(Solli &
Barbosa da
Silva 2018).
In order to
determine the
premises and
draw a
conclusion,
the physician
must know what
the National
Insurance
office needs
to know, that
is, the
purpose of or
mandate for
the
certificate
(Code of
Ethics for
Doctors 2015:
IV Rules
governing the
issuing by
doctors of
medical
certificates
and other
certified
documents,
Sections 4 and
5;
Rudebeck 2010;
Solli 2007:
373-9).
In order to achieve
verifiability,
it is
necessary to
have
recognised
professional standards, partly in order to
assess the
illness and
the functional
ability, and
partly in
order to
determine what
objective
criteria to
apply (Toon
1992,
Bruusgaard and
others 1995;
Solli 2003;
Solli and
others 2005).
However,
social
insurance
medicine lacks
standards
for describing
patients'
resources (WHO
2001).
Existing
standards
must also be
followed in
practice in
order to avoid
a situation
like the one
described by
Terum and
Nergård
(1999):
Physicians'
assessments of
patients in
terms of the
conditions to
qualify for
disability
pension were
guided to a
great extent
by the
physicians'
private values
and morals.
The
assessments
therefore
appeared to be
arbitrary and
partial.
When writing a certificate,
a physician
should also
weigh the
patient's
situation
against
material
justice
criteria or
clarify
additional
special needs.
We have
already seen
that the need
criterion
means that
people who are
occasionally
referred to as
‘vulnerable’
must have
their special
needs
clarified and
described. The
needs that
must be met in
order for
different
people to
achieve the
same actual
opportunity to
live a
dignified life
and
participate in
society may
vary. However,
the current
declaration
form is based
on the
biomedical
illness model,
which provides
little
possibility to
describe the
patients'
individual
needs (Solli
and others
2005).
The roles of treatment provider and expert: is there an ethical conflict?
We will now further analyse
the two areas
in which
Mæland’s
(2016) guide
to social
insurance
medicine
asserts that
the ethical
obligations of
the roles of
treatment
provider and
expert are in
conflict.
Beneficence and social justice
Social
justice guarantees a distribution of welfare
that in principle should be in the best
interests of all citizens. This is why a patient
should not claim a benefit for him/herself alone
that would not also be shared with others in the
same ethically relevant situation. The legal
rules express the public conditions stipulated
by the welfare state in order to receive
benefits that guarantee a person’s welfare,
which also means that some people's applications
are denied. In cases where a patient’s
application has been granted, the patient will
be able to find a link between what he/she
considers to be his/her best interests in a
given situation and the right he/she has been
granted. In cases where a patient's application
has been denied, however, disagreement may also
exist between the patient and the NIS, and
possibly also the physician, about what
constitutes a fair decision regarding the best
interests of the patient. It might not be clear
what constitutes the patient's present and
future best interests. We thus see that
expertise in social insurance medicine plays an
important role in protecting the best interests
of the patient, that is, his/her welfare,
because the patient’s condition meets the
criteria for social justice. But it is
unavoidable that an assessment by the NIS will
result in some people's applications for
benefits being denied. As noted in the
introduction, understanding this situation from
an ethical perspective does not require two
distinct types of medical ethics. The situation
can be assessed by applying SIME principles, as
shown above.
More
unusual medical conditions may not be covered by
existing legal rules. However, this is not a
matter of a conflict between ethical principles.
The problem may be that legislators should
consider drawing up legal rules that are a
better fit with people's needs and rights.
The duty of confidentiality and the duty to provide information to the NIS
Physicians' duty of confidentiality is based on the principles of autonomy and human dignity. It is up to the patient what others may learn about him/her. The patient's integrity and right to privacy must be protected. However, Section 21-4 of the National Insurance Act (1997) states that the NIS nonetheless ‘has the right to obtain the information necessary in order to check whether conditions have been met for a benefit’ (author translation). The NIS' right to obtain the necessary information from physicians takes precedence over individuals' right to confidentiality. However, Section 15 of the Health Personnel Act (1999) states that not all personal and sensitive information should be forwarded to the NIS. It states that reports must ‘contain only the information necessary for its intended purpose’ (author translation). The physician must thus determine what information is and is not necessary in a certificate.
Physicians’ sharing of information with NIS can be justified, based on the consideration of justice. We provide the following explanation: When illness is a condition for exemption from the obligation to provide for oneself, it must be possible to document the illness, based on criteria that are public and democratically enacted in legislation. This means that a public institution like the NIS requires documentation from a physician in order to assess the citizen's case. From the perspective of the citizens, the socially just welfare provided by the National Insurance system appears to be worth the price associated with the duty to provide information. The transfer of information about the patient to the NIS serves the patient's welfare. It can also be claimed that applying for a benefit from the NIS entails implicit consent to such information sharing. There are therefore no ethical conflicts between the duty of confidentiality and the duty to provide information to the NIS. Ethics can be further served by letting patients participate in the writing of particularly sensitive statements.
Occasionally, a situation occurs where a patient applies for a benefit which is contingent on illness. The patient has a medical condition that may have a particular stigma attached to it, and therefore insists that the GP should not disclose this information to the National Insurance office – for example, he/she knows that a neighbour works at this office. The physician should advise the patient that the application may therefore be denied. The physician can explain the ethical situation facing the patient by using the analysis above. It is also unreasonable for the NIS, which will be paying the benefit, not to receive information about the patient’s condition. GPs may find such situations difficult, but this hardly constitutes a conflict of medical ethics.
Conclusion
This study has argued in favour of a SIME where the ethical duties that follow from the roles of treatment provider and expert can be understood and analysed within the frames of recognised principles of medical ethics. One particular characteristic of SIME is that the obligations associated with the role of treatment provider are expanded to include a wider societal context, based on impartiality and social justice. In this context, the physician should try to balance the treatment provider’s sympathy with empathy, maintaining impartiality as a prerequisite for good social insurance medicine practices.
Respect for human dignity is the overarching principle of SIME. The four other principles are nonmaleficence, beneficence (including soft paternalism), autonomy, and social justice. We have shown that the inherent paternalism of welfare state does not conflict with the patient’s right to co-determination. We have not found any basic ethical conflict between beneficence in the role of treatment provider and the principle of justice in the role of expert. The obligation to provide information to the NIS appears to be justified, based on the consideration of social justice applied to all citizens.
We do not see that the duties of the physician's role as a treatment provider conflict with his/her duties as an expert in writing medical certificates for the NIS. To the best of our knowledge, ethical problems that arise are more likely to be a matter of differing views on how ethical principles should be applied in particular situations. Problems may necessitate the physician and the patient entering into negotiations about the specific options available. Physicians must be familiar with ethics in order to communicate with patients about the values that are at risk during social insurance medicine consultations.
Acknowledgements
We want to thank Jens Egeland and Sverre Blaasvær, Harald Elvsåshagen, and Nina Thunold Reime, for rewarding input into the writing process. Thanks to the librarians at Vestfold Hospital and to Akasie språktjenester and Cristina Pulido Ulvang for the translation into English. We also want to thank the anonymous reviewer of The Nordic Journal for Applied Ethics for insightful, constructive critique. Vestfold Hospital Trust financed this research project, and Norsk trygdemedisinsk forening funded the translation.
References
Beauchamp, T. L., Childress, J. F.
(2013). Principles
of Biomedical Ethics (7. ed.) New York and Oxford: Oxford
University Press.
Bruusgaard,
D. (1996). Pasientens advokat eller
velferdsstatens vokter? Tidsskr Nor
Lægeforen, 116: 2455-2457.
https://tidsskriftet.no
/1996/08/artikkel/pasientens-advokat-eller-velferdsstatens-vokter
Bruusgaard, D., Heiberg, A. N.,
Lie, R. K., Malterud, K., Noreik, K. &
Westin, S. (1995). Sykdomsbegrepet
i Folketrygden (§8-3). Konsensusrapport til
Trygderetten. Rapport 95:2. Oslo: Gruppe for trygdemedisin,
Universitetet i Oslo.
Code of Ethics for Doctors (2015).
Den norske legeforening. Retrieved
October 08, 2019, from https://legeforeningen.no
/Om-Legeforeningen/Organisasjonen/ Rad-og-
utvalg/Organisasjonspolitiske-utvalg/etikk/Code-of-Ethics-
for-Doctors-/
Dworkin, G. (1999). Paternalism. In
Beauchamp D. & Steinbock B. (eds.). New Ethics
for the Public's Health (pp. 115-128). New
York: Oxford University Press.
Elwyn, G., Frosch, D., Thomson, R.,
Joseph-Williams, N., Loyd, A., Kinnersley P., …
Barry M. (2012). Shared Decision Making: A Model
for Clinical Practice. J Gen Intern Med, 27(10),
1361-1367.Crossref
Gough,
I. (2017). Heat, Greed and Human Need.
Climate Change, Capitalism and Sustainable
Wellbeing. Cheltenham: Edward Elgar
Publishing. Crossref
Gulbrandsen, P., Clayman, M. L.,
Beach, M. C., Han, P. K., Boss, E. F., Ofstad,
E. H. & Elwyn, G. (2016). Shared
decision-making as an existential journey:
Aiming for restored autonomous capacity. Patient
Education and Counseling, 99, 1505-1510. Crossref
Health Personnel Act (1999). Lov om helsepersonell m.v.
(LOV-1999-07-02-64). Retrieved October 08, 2019, from
https://lovdata.no/dokument/NL/lov/1999-07-02-64
Jennings, B. (2016).
Reconceptualizing Autonomy: A Relational Turn in
Bioethics. Hastings Center Report, 46 (3):
11-16. Crossref
Kjønstad,
A., Syse A. & Kjelland M. (2017). Velferdsrett
I. Grunnleggende rettigheter, rettssikkerhet
og tvang (6. ed.). Oslo: Gyldendal
Juridisk.
Lynöe,
N., Wessel, M., Olsson, D., Alexanderson, K.
& Helgesson, G. (2011). Respectful encounters and return to
work: empirical study of long-term sick- listed
patients’ experiences of Swedish healthcare. BMJ Open, https://bmjopen.bmj.com/content
/1/2/e000246
Meland, E. (2005). Gjensidig
respekt heller enn omsorgsfull godhet. Tidsskr Nor
Lægeforen, 125: 3442-3443.
https://tidsskriftet.no
/2005/12/kronikk/gjensidig-respekt-heller-enn-omsorgsfull-godhet
Miller, D. (1999). Principles
of Social Justice. Cambridge (MA): Harvard
University Press.
Ministry of Health and Care
Services (2015). Helse- og omsorgsdepartementet. Nasjonal
helse- og sykehusplan (2016-2019). (Meld. St. 11 (2015-16)). Retrieved
October 08, 2019, from
https://www.regjeringen.no/contentassets/
7b6ad7e0ef1a403d97958bcb34478609/no
/pdfs/stm201520160011000dddpdfs.pdf
Mæland,
J. G. (2016). Veileder i trygdemedisin (9. ed.).
Oslo: Gyldendal Akademisk.
National Insurance Act (1997). Lov om folketrygd
(LOV-1997-02-28-19). Retrieved October 08, 2019,
from https://lovdata.no
/lov/1997-02-28-19
Nordenfelt, L. (2004). The
Varieties of Dignity. Health Care
Analysis, 12(2): 69-81. Crossref
Nüchtern, E., Bahemann A., Egdmann
W., van Essen J., Gostomzyk J., Hemmrich K.,
….von Mittelsstaedt G. (2015). Soziale
Sicherheit braucht Sozialmedizin.
Selbsverständnis von Ärztinnen und Ärzten in der
sozialmedizinischen Begutachtung und Beratung. Gesundheitswesen,
77, 580-585. Crossref
Pedersen, R., Hofmann, B. &
Mangset M. (2007). Pasientautonomi
og informert samtykke i klinisk arbeid. Tidsskr Nor
Legeforen, 127, 1644-1647.
https://tidsskriftet.no/2007/06/oversiktsartikkel
/pasientautonomi-og-informert-samtykke-i-klinisk-arbeid
Rudebeck,
C. E. (2010). Läkarkåren och sjukskrivningarna.
Läkartidningen,
107 (9): 592- 595.
Seger,
W. & Nüchtern, E. (2015). Physicians' Self-Conceptions of
Their Expertise in Statutory Health Insurance
and Social Security Systems. Electron
Physician. Crossref
Silverman, J., Kurtz, S. & Draper, J.
(2013). Skills for Communicating with
Patients. London:
Radcliffe Publishing. Crossref
Solli,
H. M. (2003). Medisinsk sakkyndighet,
objektivitet og rettferdighet i
uførepensjonssaker. Tidsskr
Nor Lægeforen, 123, 2072-2075. https://tidsskriftet.no/2003/08/om-helsetjenesten/medisinsk-
sakkyndighet-objektivitet-og-rettferdighet-i-uforepensjonssaker
Solli,
H. M. (2007). Rettferdighet og objektivitet i
trygdemedisinske uførhetsvurderinger. En etisk
og vitenskapsfilosofisk analyse av tre
uførhetsmodeller i et historisk perspektiv. (Doctoral dissertation, with
English summary, University of Oslo). Oslo: University of Oslo. http://michaelquarterly.no/index.php?seks_id=117258&
a=1&treeRoot=117202
Solli,
H. M., Barbosa da Silva, A. (2018). Objectivity applied to embodied
subjects in health care and social security:
definition of a comprehensive concept of
cognitive objectivity and criteria for its
application. BMC Medical
Ethics. Crossref
Solli, H. M., Barbosa da Silva,
A., Lie, R. K., & Bruusgaard, D. (2005). Biomedisinsk
sykdomsmodell og rettferdig fordeling av
uførepensjon. Tidsskr Nor
Lægeforen, 125, 3293-3296.
https://tidsskriftet.no/2005/12/om-helsetjenesten/biomedi
sinsk-
sykdomsmodell-og-rettferdig-fordeling-av-uforepensjon
Steigleder, K. (2014). Human
dignity and social welfare. In Düwell M.,
Braarvig J, Brownsword R & Mieth D (eds.). The
Cambridge Handbook of Human Dignity (pp.
471-476). Cambridge: Cambridge University Press.
Crossref
Steihaug, S., Gulbrandsen, P.
& Werner, A. (2012). Recognition can leave room for
disagreement in the doctor-patient consultation.
Patient
Education and Counseling, 86, 316-321. Crossref
Terum, L. I. & Nergård T.B.
(1999). Medisinsk skjønn og
rettstryggleik. Legar som portvakter i
fordelinga av offentlege goder. Tidsskr Nor
Lægeforen, 119, 2192-2196.
https://tidsskriftet.no/1999/06
/artikkel/medisinsk-skjonn-og-rettstrygg leik
Tomasello, M. (2016). A Natural
History of Human Morality. Cambridge (MA):
Harvard University Press. Crossref
Toon, P. D. (1992). Ethical aspects
of medical certification by general
practitioners. British Journal of General
Practice, 42: 486-488.
Tranøy,
K. E. (2005). Medisinsk etikk i vår tid (4.
ed.). Bergen, Fagbokforlaget.
UNESCO (2005). Universal
Declaration on Bioethics and Human Rights.
Retrieved October 08, from
http://unesdoc.unesco.org/images
/0014/001461/146180E.pdf
Waddell, G. & Burton A.K.
(2006). Is
work good for your health and well-being?
London: TSO.
Westrin, C.-G. & Nilstun T.
(2002). Försäkringsmedicin och etik. In Järvholm
B. & Olofsson C. (eds.). Försäkringsmedicin
(pp. 223-241). Lund: Studentlitteratur.
WHO. (2001). International
Classification of Functioning, Disability and
Health. ICF. Geneva: World Health
Organization. Retrieved October 08, 2019, from https://www.who.int/classifications/icf/en/
Wifstad,
Å. (2013). Helsefagenes etikk. En innføring.
Oslo: Universitetsforlaget.
Wynne-Jones,
G., Mallen, C. D., Main, C. J. & Dunn, K. M.
(2010). What
do GP's feel about sickness certification? A
systematic search and narrative review. Scandinavian
Journal
of Primary Health Care, 28,
67-75. Crossref