Choreographing government’s agenda

I was curious and somewhat mystified to read Dr Kenneth Kirkwood’s commentary, “Casting Call,”1 in which he adds his authoritarian voice as an academic ethicist to the chorus of government acolytes now attempting to further limit the civil liberty of physicians.

By way of explanation of the purpose and timing of his editorial, Dr Kirkwood (PhD) tells us that there has been “little evidence of debate about [the subject] in academic and professional journals.” Readers should know that the College of Physicians and Surgeons of Ontario (CPSO) initiated discussion on this matter through a proposed new policy called “Establishing a Physician-Patient Relationship” a full 6 months ago.2 And no less a body than the Ontario Human Rights Commission has already weighed in with its views.3 There is little doubt that, legally, physicians (like all other service providers) are prohibited from discriminating on the grounds listed under the Human Rights Code (including disability). And yet, aside from Ontario Human Rights Commission issues, physicians are still free to enter into contract with anybody, so long as both parties agree. Contrary to Kirkwood’s suggestion, much heated debate is currently taking place within the profession in Ontario, and several reports regarding the same have appeared in the Ontario Medical Review, The Medical Post, and the CPSO’s own Members’ Dialogue.

The issue here is a doctor’s right to freely enter into contract with his or her potential, individual patient. And, I suspect, the CPSO will soon tell us what, if any, further infringement to individual liberty it intends to impose upon the profession after its General Council meeting in the fall.

Confusion is always possible, I concede, when a subject like “duty” with both ethical and legal implications is under discussion. Kirkwood’s commentary does little to relieve it. For example, he devotes an entire paragraph to “dereliction of duty” without ever defining what the duty under discussion actually is or entails. And when he suggests that “physicians certainly do have a duty to patients,” Kirkwood, the ethicist, seems to be creating a new collective duty that doesn’t currently exist in either law or ethics.

There is no question that an individual doctor owes a duty of care to his or her individual patient once a patient-doctor relationship has been established. This as I understand it is a fiduciary duty in law, and whole forests of legal timber have been felled to flesh out the existing regulation and jurisprudence.

There is also a general duty that any doctor owes to any individual member of the public (who is not necessarily an existing patient) only in emergency situations, which is a consequence of membership in the profession. These individual duties cannot be extrapolated into some sort of group or collective duty to the public at large, as Kirkwood and, before him, the CPSO, seems to be doing here. Extrapolation, whether in reason or in calculation, is always a questionable argumentative technique.

Then we come to the ultimate purpose of his commentary, where Kirkwood concludes that “Picking and choosing patients because you have the stronger position in the marketplace of supply and demand is a fundamental dereliction of duty and ethically abhorrent.” This, I suppose, would be a viable argument if the basic assumptions inherent in the argument were supportable by critical analysis. Unfortunately for Dr Kirkwood’s argument, there is no “marketplace” (the last time I checked). Certainly not one that might be recognized by Adam Smith or his successors. There is, rather, a monopsony (a monopoly within a service industry) system, carefully regulated and controlled by the monopolist provincial government. And the “supply” of doctors within this monopsony is arbitrarily limited as a consequence of ideology, which confuses responsibility to provide insurance for total state control of all things medical. This artificial shortage in supply of doctors is clearly to the detriment of not only the taxpaying public but also an entire generation of potential medical school entrants. How, precisely, being in “short supply” within Kirkwood’s mythical “marketplace” creates a “stronger position” for any physician when physicians are denied the right and the ability to set their own fees, and therefore their sense of worth, is a mystery to me. And, to be frank, I don’t yet know of a single colleague who chooses any prospective patient because he or she believes they have a “stronger position.” To suggest that it is so is a classic “straw man” argument or tactic.

Young altruistic residents and new physicians, those about to enter the real world of medical practice, don’t need the sort of Kantian philosophical guilt trip that Kirkwood advances here. The rest of us, seasoned by experience, are well aware that the gods of unintended consequences are watching this circus with interest.

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