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Current & Recent Research at Penn Law

Author: Sawicki, Nadia N.
Citation: A Theory of Discipline for Professional Misconduct
Date Published: Forthcoming
Date Posted: 06/17/2008
Subjects: Law and Health Sciences
Law and Philosophy/Jurisprudence
Law and Regulatory Systems
Law, the Profession, and the Public Interest
Public Law and the Constitution
Keywords: Legal Philosophy
Moral and Political Philosophy
Professional Ethics
Health Law and Policy
The regulation of medical providers through licensing and discipline is one of the most important means by which states fulfill their obligations to support public health, safety, and welfare. In many cases, however, the disciplinary powers granted to state medical boards are broader than necessary to ensure that physicians are competent to practice medicine. Many medical practice acts authorize discipline for a variety of activities that do not directly implicate clinical competence or patient safety – for example, being convicted of a felony or a crime of moral turpitude, failing to comply with a child support order, providing expert opinion to a court without reasonable investigation, ordering unnecessary laboratory tests, engaging in conduct that brings the medical profession into disrepute, or violating a professional code of ethics.
Scholars commonly justify such broad disciplinary powers by reference to the easy truisms of professionalism and public trust, but few have sought to ground these principles more directly in police power-based theories of state action. This paper aims to develop a comprehensive account of the justifications for sanctioning professional licensees for behavior that does not clearly implicate clinical competence.
In identifying behavior that is legitimately subject to professional discipline by the state, the author first considers whether the behavior is linked to a professional’s clinical skills and/or position of privilege. Generally, professional sanctions are an inappropriate mechanism for preventing misconduct independent of professional status (e.g., infidelity, tax evasion, theft). However, a stronger case can be made for disciplining physicians for misconduct suggesting lack of respect for life, health, bodily integrity, or other values integral to the competent practice of medicine, even if it occurs independent of professional status (e.g., assault, murder, intentional transmission of infectious disease). Next, the author justifies the discipline of licensees who use their clinical skills or positions of privilege to cause intentional harm to an individual (e.g., sexual assault of a patient) or to secure personal benefits at the expense of society or a third party (e.g., Medicare fraud) in an abuse of their fiduciary role.
The most challenging situations, however, and those addressed in greatest detail in this article, are those where unintended but foreseeable harms to public health, safety, or welfare result from a professional’s behavior. This can occur where the professional opts to support his patient’s interests at the expense of a third party (e.g., abortion, failure to report a patient’s infectious disease to public health authorities, biased expert testimony), where the professional opts to support public interests at his patient’s expense (e.g., civil commitment, medical participation in torture or interrogation), or where there are competing definitions of patient welfare (e.g., physician assisted suicide, medical marijuana, circumcision). In these cases, the justifiability of professional discipline will depend on the extent to which the state is able to demonstrate that the physician’s behavior poses an unreasonable level of risk to the public. In making this determination, however, the author argues that the state should consider the profession’s own understanding of the values integral to professional competence – namely, respect for life, health, and bodily integrity