What’s the Point of Professional Ethical Codes?

For a few reasons, I’ve been thinking a bit over the last few months about professionalism and professional codes.  In fact, that’s the topic that’s attracted most of my attention here since… oooh, ages ago.  I find the idea of a code of professional ethics troubling in many ways, but also fascinating.  And one of the fascinating questions has to do with what they’re for.

They can’t be meant as a particularly useful tool for solving deep moral dilemmas: they’re much too blunt for that, often presuppose too much, and tend to bend to suit the law.  To think that because the relevant professional code enjoins x it follows that x is permissible or right smacks of a simple appeal to authority, and this flies in the face of what it is to be a moral agent in the first place.  But what a professional code of ethics may do is to provide a certain kind of Bolamesque legal defence: if your having done φ attracts a claim that it’s negligent or unreasonable or something like that, being able to point out that your professional body endorses φ-ing will help you out.  But professional ethics, and what counts as professional discipline, stretches way beyond that.  For example, instances of workplace bullying can be matters of great professional and ethical import, but it’s not at all obvious that the law should be involved.

There’s a range of reasons why someone’s behaviour might be of professional ethical concern.  Perhaps the most obvious is a concern for public protection.  If someone has been found to have behaved in a way that endangers third parties, then the profession may well want to intervene.  For example: if an HCP knew herself to be a carrier of a transmissible disease but did nothing about it, this would quite plausibly be a matter for professional concern, irrespective of what the law says, or whether anyone had been harmed.  The same would apply if we discovered that a surgeon was unable to function without a large brandy to settle his nerves.  But we’d want to make sure that the professional concern was for the right thing.  It would be inappropriate to sanction someone merely for being a carrier, or for being alcohol dependent.  (Along these lines, it seems defensible to me not to have suspended Martin Royle, a surgeon who falsified prescriptions in order to satisfy his addiction to painkillers.  It’s better to treat an addiction than to punish it.)

A second reason is for the sake of collegiality.  For example, there’s nothing illegal about being  a racist, and there probably shouldn’t be; but it is at the very best distasteful.  Imagine you discover that your colleague is an abiding racist.  It is not hard to see how this knowledge might have implications for your professional interactions – especially (but not only) if you’re a member of one of the groups to which your colleague has a demeaning attitude.  (Indeed, the same might be true if he had used to be a racist, but had changed his attitudes.  I suspect that that’s the sort of thing that might have a fairly long half-life.)  Now imagine that your colleague is a frequent attendee at rallies, held in support of racist policies, that are often associated with threatening behaviour: he doesn’t just dislike some people, but is visibly hostile to them.  That, it seems to me, might be a matter of professional concern, because it will predictably make the working environment much more difficult.  It would be harder to trust this colleague (again, especially but not only if you happen to be a member of one of the groups he hates).  That might be sufficient to raise worries about whether he’s a fit person to do the job in question.  Again, though, there’d have to be a proviso: there is a difference between one’s professional abilities and one’s personal attitudes, and between how one behaves in and out of work.  A surgeon is a surgeon for all that.  So there is a genuine problem here concerning what to do.  But a genuine problem means that there is a cause for concern.

(Indirectly, this second concern might have something to do with public safety, too.  A surgical team in which people are uncomfortable working along side each other may be one in which patient outcomes are affected.  But that would be a further matter, and would not have to collapse into the safety point.  Imagine that the profession is accountancy: it might still be that members of the group would simply be intolerably uncomfortable working alongside their racist colleague, although the audit will still be done perfectly well.  The same will apply in any profession.)

But there’s another factor, which is the status of the profession.  To what extent are professional ethics codes and bodies that judge professionalism in the business of protecting themselves and their high social status?  A couple of recent cases raises that question.

One that hit the headlines was that of Lavinia Woodward.  She was the medical student who stabbed her partner but who was reported as having escaped a custodial sentence because of the damage that that would do to her career.  (The always-excellent Secret Barrister has a rather more thoughtful take on the case than did some members of the Fourth Estate.)  As Daniel Sokol points out, “Ms Woodward may not be permitted to enter the profession. Once the criminal proceedings are over, investigations and disciplinary hearings await her”.  This will come as a surprise to virtually noone, but it does prompt the question of why that should be.  She was found to have broken the criminal law; she was treated in accordance with the criminal law.  Assume, arguendo, that whatever the sentence imposed – custodial or not – it would have been just.  What further business is it of anyone else?

There may be a perfectly good answer to be had to this question: that’s the danger of rhetorical questions.  But if she has served her time, and there’s no indication that she’s any more of a danger to her patients than is any other tolerably competent medic… well, what’s the problem?  The concern might be collegiality-based, but would future colleagues remember her?  I had to google her name for the sake of this post, and the case was only a couple of months ago.  Might it be simply that the profession would simply want to make a show of dissociating itself from certain kinds of people?  I’m wary of wandering from a real life case into the realms of speculation – but a lot of professions have some version of a rule against bringing the profession into disrepute.  That seems best explained in terms not of protecting patients or collegiality, but maintaining status.  In other words, public opinion becomes important in settling someone’s fate.  Whether that’s necessarily just is… well, it’s not an easy question to answer.

And then there’s this.

Last autumn, one Theresa Okondunjokanma was jailed for 18 months for fraud.  I have no particular problems with that: if it’s what the law demands, and on the assumption that the law is just and justly applied, then all seems to be in order.  Now, Okondunjokanma was a nurse; and it’s reasonable to suspect that a spell in chokey would be the sort of thing that would put a dent in one’s career progress.  It might even be the kind of thing that puts an end to your career: if potential future employers have to choose between you and someone who is perfectly matched CV-wise but who lacks the criminal conviction, then that might well serve as a tie-breaker.  Further, if you go long enough out of work, you might get to the point where your skills are significantly out of date.  This, it seems to me, is unfortunate.  (It’s just one of the many arguments against being enthusiastic to send people to prison – but that belongs on another blog.)  But unfortunate does not mean unjust.

Yet Okondunjokanma has also been struck off the nursing register.  The charge and the ruling by the NMC can be found here.  What is interesting is some of the phrasing: notably, in the charge, that her fitness to practise was impaired by reason of her fraud conviction.  Why should that be?

Grace Hansen, representing the NMC, argued that

Ms Hansen submitted that fitness to practise is a matter for the panel having regard to the public interest in upholding public confidence in the profession and in the NMC as a regulator. She submitted that defrauding public money is a serious matter and there is a high public interest in this case.

Ms Hansen submitted that Ms Okondunjokanma has demonstrated serious and persistent dishonesty and the panel may surmise that this demonstration of dishonesty in her personal life may indicate that she would act dishonestly in her professional life. She submitted that she has breached one of the fundamental tenets of the profession in not acting with honesty and integrity. […]

Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients’ and the public’s trust in the profession.

This was accepted by the NMC.  But there is something curious about it all.

Why is there a public interest matter here?  I mean, there’s a public interest to be served in nurses being competent and trustworthy qua nurses – but does benefit fraud fall under that?  It’s not obvious that it does: it’s quite possible for there to be a big difference between the way one behaves in different areas of life; no evidence seems to have been produced that Okondunjokanma actually had been dishonest during office hours, or in a way that had any inherent link to her job.  Indeed, the case against her is an invitation to speculate.  The idea that people may not be able to trust a fraudster with the life of their loved ones is… well, it’s a bit of a stretch, isn’t it?

It’s more of a stretch when we compare what happened to her with what happened to Royle, the surgeon whom I mentioned above.  His fraud was directly medically relevant.  More, he was also found to have performed sub-standard procedures, and to have continued to perform them even after restrictions were placed on his practise.  This is also a serious matter of direct clinical concern.  It may be that his treatment was unduly lenient.  But that doesn’t mean that Okondunjokanma’s was not unduly harsh.

One wonders what, really, the NMC was hoping to achieve by striking off the register someone who’s crime was not professionally related, and who might have had all the reason in the world not to seek further registration for the sake of jobs she’d be less likely to get in the future anyway.

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