An Ethics Odyssey V

Current Status (continued from An Ethics Odyssey IV)

As of April 27, 2010 the initial question regarding possible fee-splitting remains unanswered and the WSPA investigation of the informed consent issue appears to be in limbo, possibly awaiting review by APA. The Illinois committee issued a final determination in a letter dated July 7, 2009 indicating application of the educational sanction but with no mention of an option for the complainant to appeal. The Queens County committee may have been the only one to suggest that the conduct was clearly not unethical, indicating in a letter dated October 20, 2008 that the complaint was dismissed. Aside from WSPA (and possibly IPS) no other committee appears to have taken up the informed consent question.

Ethics Committee Report Card

DB	Date initiated	Date determined	Determination	Communi-cation	Perfor- mance
WA	1.9.2007	NA	None/pending	F	F
FL	4.17.2007	NA	Raised bogus question of illegal activity	C	F
TX	4.17.2007	11.14.2007	Presumed ethical because of informed consent	D	D
GA	4.17.2007	9.17.2007	Different financial arrangement	A	A
NJ	4.17.2007	6.18.2007	Psychiatrist no longer licensed… did not accept any fees	A	NA
Queens Cnty, NY	4.17.2007	10.20.2008	No ethics violation.	B	A
Illinois	1.21.2008	NA	Determination only implied.	A	A-
S CA	1.21.2008	3.10.2008	Raised bogus question of illegal activity; did not respond to questions.	F	F
HI	4.17.2007	2.3.2008	Wrong psychiatrist with similar name	A	NA

Conclusions

This admittedly difficult group of cases has indeed revealed weaknesses in APA’s procedures for handling ethics questions. APA and the local committees have failed to answer a straightforward ethics question posed by a member in good faith after more than two years time. If members cannot expect timely responses to such questions, they may choose to take their chances with conduct that an ethics committee may determine to be unethical after the fact. This places patients and physicians at unacceptable risk and should be remedied immediately.

Unnecessary delay in addressing such a question may adversely affect the member financially by forcing the member to delay making a decision that could have resulted in increased income. This also may create the appearance of anti-competitive activity. If committee members fear that allowing another member to provide a new treatment will take business away from them, they erect temporary road blocks. This could also hurt our patients by delaying availability of needed and effective treatment.

Delay in addressing these questions resulted to a large degree from the WSPA ethics committee’s requirement that the matter be handled as an investigation. The committee should have answered the questions I posed as soon as it gained access to the necessary documents, or the APA ethics committee should have answered the question, as did the Queens County comittee. Delay and avoidance of answering the questions served no legitimate purpose. WSPA subsequently issued a statement to the effect that the ethics committee, as a matter of policy, will no longer take up questions regarding ethics, but will only investigate actual complaints. While I am disappointed, I support this decision. These questions should be addressed by the APA ethics committee.

The quality of response to referrals of potential ethics problems differs markedly from committee to committee. While the Illinois committee’s response appears exemplary Florida and Southern California appear to have used the baseless ploy that their might have been some kind of illegal activity to avoid investigating the cases at all. Texas would appear to believe that informed consent obviates any concern about ethical conduct even without clear evidence that informed consent was obtained, and APA upheld their decision. APA needs a mechanism for assuring consistent quality of investigation across all local committees and should remedy this problem immediately.

It appears likely that determinations will differ among local committees. Texas appears to have determined there has been no violation, but it is not clear that the practice in question actually was used by their members. WSPA pretended to address the question but did not. Only Queens County and Illinois may have come to a real determination. What is considered unethical in Illinois should not be considered ethical in Texas. Nor should this require appeal to APA. APA needs a mechanism for assuring consistency in ethical determinations throughout the association and should establish procedures needed to achieve this goal immediately.

Dr. Adler’s meeting and conversations with representatives of the company gave the appearance that his committee may have assisted this for-profit corporation in crafting their contract. This is not an appropriate role for a professional association ethics committee because of the possibility of conflict of interest or role conflict. Furthermore, he should not have informed company representatives about my “inquiries to the Washington State Psychiatric Association (WSPA) and to a news reporter.” Although the “complainant” has no duty of confidentiality, the committee should consider communications to an ethics committee by the complainant privileged, particularly with regard to a third party like the company. His request that I as the complainant agree to non disclosure after I raised questions about his contacts with the company and reference to the “Martini Doctrine” was not justified. Perhaps the APA ethics committee should address this kind of conduct in formal guidelines.

The company appears to have performed admirably. Their secrecy requirement probably served a legitimate need to protect their investment. When questions were raised, they responded appropriately, apparently bending over backward to assure that their doctors can provide the protocol ethically. However, their charges of harassment and threats of litigation to avoid further referrals of ethical questions by their legal counsel was gratuitous and may have constituted attempted interference with the ethics determination process by intimidation. There remains as well the question of whether the treatment protocol works.

The use of agreements requiring secrecy poses a challenge for APA ethics policy. Members should not be able to avoid scrutiny of their professional activities for compliance with ethics guidelines simply by agreeing with a third party to keep those activities secret. The APA ethics committee should advise members not to enter into such an arrangement unless it specifically allows them to reveal the agreement to an ethics committee. The committee should also advise members not to enter into agreements that do not allow them to provide full informed consent to their patients.

The risks, costs, time and other factors associated with ethics investigations may exceed what is reasonable to expect from members of a district branch or state association. APA should consider increasing the level of indemnification of members investigating ethics complaints and providing more support including access to legal counsel.

The problems with the APA’s system for addressing ethics in the profession described above provide evidence that the system needs to be fixed. Delay in action to correct these problems will hurt our profession.

(Financial interest disclosure: The author owns stock in the company discussed above. One share, valued 4.6.2010 at $0.21.)