Topics: Duty to Patient's Physical, Psychological, Socioeconomic Welfare; Wealth Distribution and Moral Hazard; Overutilization of Services; Rationing of Care Among Patients
Notice: Two physical therapists sent the Ethics and Judicial Committee an ethics inquiry by e-mail of June 29, 2000. Below is the text of the Committee's response of September 14, 2000 (not including the identity of the requesters):
Dear [names deleted]:
The APTA's Ethics and Judicial Committee (EJC) reviewed and discussed your inquiry of 6/29/00 at its meeting of July 15-16, 2000.
You asked whether it would be unethical for you and your physical therapist colleagues to continue to provide physical therapy services to a patient who has been treated for over two and one half years and has made very little progress over that time. As explained below, on the basis of the circumstances described in your e-mail, the EJC is not prepared to say that it would be unethical for you and your colleagues to continue treating the patient. (Your inquiry did not ask whether it would be ethically permissible for your facility to discontinue treating the patient, and this response does not address that question.)
I. Factual Background
You both work at a university medical center. Your inquiry involved the ethical propriety of continuing to treat a patient with traumatic brain injury, secondary to a motor vehicle accident, whom your department has been treating since February of 1998. Your department believed that it was crucial to educate the patient's family/caregiver to assist with preservation of the patient's current functional status and to promote positive changes for the patient. When you began treating the patient her primary mode of mobility was a manual wheelchair propelled by family/caregiver and she required total assistance for bed mobility and transfers. Your department began seeing her for physical therapy in your aquatic center three times a week to promote muscular relaxation, increase joint range of motion, and reduce the opportunity for contractures. Since February of 1998 your department has seen the patient 2-3 times per week with only minor interruptions due to hospitalization or medical complications. Her functional status remains fairly similar to what it was when you initiated her therapy two and a half years ago. She still uses a manual wheelchair that is propelled by family/caregiver. She still requires total to maximal assist for her bed mobility and transfers. Her performance with activity in the clinic setting is inconsistent.
The EJC understands that almost all of the physical therapists in your department believe that the patient's progress has reached a plateau at this time. Your inquiry is silent as to whether any of the therapists in your department believe that the patient's condition might deteriorate if physical therapy were discontinued at this time.
The patient is covered by insurance under Michigan's no-fault insurance regime. The insurer has paid for all services to date, and your department understands that the insurer will continue to do so as long as the service is deemed "medically necessary." Your inquiry says nothing about the insurer's asking your department for any information concerning whether physical therapy services are still "medically necessary," and the EJC therefore assumes (a) that the insurer does not seek input from your department related to the question whether physical therapy services are "medically necessary" or (b) that your department does not perceive any ethical problem in doing its best (consistent with the paramount obligation to be truthful) to be an advocate for the patient's financial interests in any communications with the insurer.
Your inquiry states that the patient's father is a reputable physician in the area who has pushed for his daughter to have continued physical therapy. The EJC understands and assumes that the patient's father is the appropriate person to speak on her behalf, on account of her age (undisclosed) and/or her mental capacity. You indicated that your department has done its best to communicate to the patient's father that (collectively) you feel the patient’s progress has reached a plateau. The patient's father will not hear of such "negativity" and insists that she will walk again.
Your department has continued to treat the patient despite certain ethical misgivings. Your inquiry indicates that the therapists in the department do not believe that the patient has made "functional gains" adequate to "support" the work of a licensed physical therapist. The firmly held consensus of the therapists in your department is that "the resources of society as a whole are being spent wastefully on this case." You and your colleagues feel that you can not "rightfully" continue to give the patient treatment at the level of skill (i.e., licensed physical therapist) currently devoted to her care.
On account of the ethical misgivings sketched above, your department took up with the Hospital Ethics Committee (HEC) the matter of continuing treatment of the patient. The HEC, which is made up of a physician, nurse, social worker, pastoral care associate, and attorney, recommended that you first pursue the question with your professional ethics committee for feedback and advice. You indicated that your department plans on meeting again with the HEC following receipt of the EJC's response.
II. Ethical Issues
In light of the foregoing, you asked the EJC for "support" in defining the term "overutilization" of medical care. You also asked for support with regard to assisting the department as to what constitutes a "reasonable" timeframe for the amount of functional "gain" the patient has attained.
The EJC understands your basic question to be whether, under the circumstances you describe, it would be unethical for a physical therapist in your department to continue to provide physical therapy services to the patient. In other words, the question is whether continued treatment is ethically permissible, not whether continued treatment is ethically required. In particular, your inquiry raises the question whether a physical therapist who continued to treat the patient would be engaged in the unethical overutilization of physical therapy services.
The EJC believes that your inquiry raises a question as to the relationship between a physical therapist's ethical obligation to a patient, on the one hand, and to society at large, on the other.
Your inquiry also suggests a question as to the relationship between a therapist's obligation to one of his/her patients, on the one hand, and to other current or prospective patients, on the other.
A. Duty to Patient
The EJC would begin by pointing out that a physical therapist's primary ethical obligation is to act in the best interests of the individual patient. Principle 1 of the APTA's Code of Ethics provides, "A physical therapist shall respect the rights and dignity of all individuals and shall provide compassionate care." The EJC's Guide for Professional Conduct (Guide) interprets the Code of Ethics. The first two sentences of the Guide's interpretation are:
A. Physical therapists shall recognize that each individual is different from all other individuals and shall respect and be responsive to those differences.
B. Physical therapists are to be guided at all times by concern for the physical, psychological, and socioeconomic welfare of those individuals entrusted to their care.
Guide, 1.1.A and B. The guiding principle is that a physical therapist should place the patient's welfare (physical, psychological, and socioeconomic) first, and that a physical therapist should recognize the uniqueness of each individual patient.
The foregoing ethical principles do not compel the conclusion that continuing to treat the patient would be unethical. On the contrary, these principles tend to support the ethical propriety of continuing to treat the patient in question.
1. Patient's Physical Welfare
With respect to the patient's physical welfare, your inquiry says only that the therapists in your department believe that she has not made "functional gains" sufficient to "support" continued services from a physical therapist. However, your department clearly does not believe that continuing treatment would be harmful to the patient's physical health. Your inquiry does indicate that the "functional gain" to date has been very small, and it suggests that the therapists in your department do not anticipate any significant "gain" from further treatment. However, the EJC believes that preventing a patient's condition from deteriorating can be a legitimate goal of ethical treatment. In light of your inquiry's silence as to this aspect of the patient's physical condition, the EJC is not prepared to conclude that continued treatment would be harmful to the patient's physical welfare based on the circumstances you describe. Indeed, the EJC is inclined to assume that continued treatment would be beneficial to the patient's physical welfare, albeit only to a very limited degree.
The EJC recognizes that many insurers will pay for physical therapy only if it promises to result in some "functional gain." The EJC is sympathetic to you and your colleagues' evident hesitation to provide treatment that you believe will produce little or no functional gain. However, the ethical obligation of a physical therapist to his/her patient is not dependent upon the reimbursement policy of the patient's insurance company or even the reimbursement policies of most third-party payers. As indicated above, the EJC does not believe that it is intrinsically unethical for a physical therapist to provide treatment in a situation where he/she believes that little or no functional gain will result.
2. Patient's Psychological Welfare
With respect to the patient's psychological welfare, your inquiry has little to say. You do indicate that the patient's father has a strong desire for continued treatment and that he remains committed to the goal of enabling her to walk again. Your inquiry is silent as to the patient's own wishes or state of mind vis-a-vis continued physical therapy. On the basis of your inquiry, the EJC is not prepared to say that continued treatment would be harmful to the patient's psychological welfare. Indeed, your inquiry suggests that continuing treatment would more likely benefit than harm the patient's psychological condition.
3. Patient's Socioeconomic Welfare
With regard to the patient's socioeconomic welfare, the rather unusual circumstances of the case indicate that the cost of continued treatment would not be harmful to the patient's "socioeconomic" welfare. The dollar cost of continued care undoubtedly would be great, both in absolute terms and, particularly, in comparison to the foreseeable benefit to the patient's physical condition. However, in this case the financial cost evidently falls largely (if not entirely) on a third party insurer. Although a physical therapist undoubtedly has an ethical duty to be truthful in any communications with a third party insurer, the Guide surely does not suggest that a therapist owes an ethical obligation to look out for the financial interests of an insurance company (typically a for-profit corporation with a legal obligation to serve the best interests of its shareholders) that somehow overrides the therapist's ethical duty to act in the patient's financial interest. Your department's continuing to treat the patient evidently would not be harmful to the patient's financial condition (or that of her family).
The EJC is inclined to believe that the ultimate responsibility for evaluating the financial consequences of treatment lie with the patient and that the therapist's ethical obligation is to communicate clearly to the patient his/her judgment about the foreseeable physical benefits of continued treatment. See Guide 3.2.A, which directs that when "physical therapists judge that an individual will no longer benefit from their services, they shall so inform the individual receiving the services." In the physical therapist-patient relationship, the therapist has special competence and expertise with respect to the likely physical benefits of treatment. However, the patient is the expert as to his/her own financial resources and how much physical therapy he/she can afford. The physical therapist does not have such special competence with respect to whether the foreseeable physical benefits are "worth" the associated financial burden. In general, therefore, if a physical therapist clearly and honestly communicates to the patient the therapist's bleak clinical prognosis, the decision whether to devote the available financial resources to continued care lies with the patient, and the therapist would not be acting contrary to the patient's "interests" by providing physical therapy services that the therapist believes will result in scant physical benefit.
In the case under consideration your department has been quite candid in communicating to the patient's father that the physical therapists have little hope that further treatment will lead to "functional gain." In this particular, your department appears to have acted in a very responsible fashion. The upshot, however, is that you have enabled the patient (or, perhaps more accurately, her family) to make the decision to go ahead with further treatment with full knowledge that most of the therapists are not optimistic about the patient's making functional gains. The financial burden to the patient (if any) of continued treatment thus is a burden the patient and/or her family have freely chosen to assume.
4. Physical Therapist's Professional Judgment
The EJC would point out that, just as the patient is the expert as to his/her own financial situation, the physical therapist is the expert as to determining what care is appropriate for the patient and how it is to be delivered. The physical therapist is responsible for establishing the plan of care and for providing and/or supervising the appropriate intervention. See Guide, 3.1(A). (The EJC does not mean to say that a physical therapist must disregard input from the patient as to the plan of care, only that the therapist remains responsible for making clinically sound judgments.) Decisions as to the activities that may be assigned to physical therapist assistants or other support personnel are the responsibility of the physical therapist. The EJC believes that it would not be unethical for the physical therapists in your department to assign certain patient-related tasks to assistants or other personnel, subject to the limitation that a physical therapist may not assign to support personnel any task that requires the unique skill, knowledge, and judgment of a physical therapist. See Guide, 3.2(A). Of course, the supervising physical therapist always remains responsible for reevaluating the patient and adjusting the plan of care when necessary. See Guide, 3.2(B)(9). In connection with the patient to whom your inquiry relates, the physical therapist's obligation to exercise sound professional judgment means that it very well might be ethically permissible for the physical therapists in your department to utilize physical therapist assistants or other support personnel. However, the provisions of Guide 3.1 and 3.2 do not entail that it would be unethical for the physical therapists in your department to provide and/or supervise continued care to the patient.
B. Wealth Distribution and Moral Hazard
The case you describe has two financial aspects that raise questions of public policy, if not professional ethics. That is, (i) the patient has very great financial resources at her disposal, and (ii) as a practical matter, she enjoys the benefit of being able to spend somebody else's money on her care (i.e., the third party insurer). These features of the patient's situation certainly provoke questions concerning, respectively, (i) the difference between the ability of wealthy people and poor people to afford care and (ii) the "moral hazard" inevitably associated with insurance (i.e., the temptation, if you will, to spend recklessly or wastefully that is associated with being able to purchase services for which some other party must pay). Although the EJC recognizes that the disparity between the rich and the poor and the moral hazard associated with third-party payment are issues having a moral dimension, the EJC is not prepared to say that it would be unethical for a physical therapist to provide high-cost low-benefit physical therapy to a patient merely because the patient happens to be wealthy and/or happens to enjoy unusually rich insurance coverage.
C. Overutilization of Services
The upshot of the foregoing discussion is that considerations of a physical therapist's obligation to act in the patient's best interests (physical, psychological, and socioeconomic) do not compel the conclusion that the therapists in your department would be acting unethically in continuing to treat the patient.
However, your inquiry uses the term "overutilization," and the Guide for Professional Conduct does contain language indicating that it would be unethical for a physical therapist to participate in the "overutilization" of services. In connection with a physical therapist's obligation to the patient, the Guide says:
When physical therapists judge that an individual will no longer benefit from their services, they shall so inform the individual receiving their services. Physical therapists shall avoid overutilization of their services.
Guide, 3.2.C. In connection with a physical therapist's obligation to society, the Guide says:
Physical therapists shall be obligated to safeguard the public from underutilization or overutilization of physical therapy services.
Guide, 7.1.C. Your inquiry raises the question whether, under the circumstances you describe, a physical therapist would be acting unethically, by participating in "overutilization" of services, in continuing to treat the patient.
The EJC, in discussing your inquiry, recognized that the Guide for Professional Conduct does not attempt to define what is meant by "overutilization" as used in Guide 3.2.C and 7.1.C. The term certainly is difficult to define, especially in light of the physical therapist's primary obligation to act in the best interests of the patient (who ordinarily will benefit physically from more care). The EJC, mindful of the difficulty of the issue, reached a consensus (at least provisionally) that where a physical therapist's judgement is that a patient will receive negligible benefit from continuing physical therapy services, the physical therapist shall not continue to provide such services if the primary reason for doing so is to further the financial self-interest of the physical therapist or his/her employer. Of course, when a physical therapist's judgment is that a patient will receive only negligible benefit from further services, the therapist undoubtedly has the obligation, referenced above, to so inform the patient (and the referring practitioner, if any). See Guide, 3.2.C.
The EJC does not believe that continued treatment of your department's patient, under the circumstances you describe, would constitute unethical "overutilization" of services under the foregoing principle. Your inquiry certainly does indicate that the judgment of most of the physical therapists in your department is that the patient will receive only negligible physical benefit from continued treatment. However, your inquiry does not contain any information tending to indicate that the primary reason that you and/or your colleagues continue to treat the patient is to further your own financial self-interest or that of the medical center. As far as appears, terminating treatment of the patient would have no financial consequences for the staff physical therapists who provide the care. Your inquiry does not suggest that your employer (i.e., management of the medical center/department) is insisting upon continued treatment in order to obtain the revenue that such treatment will generate or – the same thing – in order to avoid losing that stream of revenue. It is possible, of course, that the medical center's primary motivation in this case is to avoid losing the revenue it can earn by continuing to treat the patient. However, your inquiry does not contain any information tending to support this possibility. Your inquiry suggests that the chief proponents of continuing care are the patient's father (a local physician) and the attending physician, and it is theoretically possible, of course, that the management of the medical center has an underlying financial interest in accommodating two physicians who may be in a position to direct business to the hospital or otherwise to confer financial benefits on the hospital. However, that possibility is a matter of mere speculation; your inquiry does not say anything that indicates the medical center has been motivated by such financial self-interest in continuing to treat the patient. In sum, the EJC is not prepared to conclude that continuation of treatment under the circumstances you describe would constitute the unethical overutilization of physical therapy services.
D. Rationing of Care Among Patients
The EJC recognizes that if a physical therapy practice is busy, the decision to continue treating a patient for whom the clinical prognosis is very bleak might have the practical consequence of preventing some would-be patients from obtaining needed physical therapy services. Similarly, the decision to continue treating a patient with such a prognosis might delay or otherwise curtail the delivery of physical therapy services to other patients having a much more favorable prognosis.
The overutilization analysis used above presumably would not be applicable to such a case because the decision whether to continue treating the patient with the poor prognosis presumably would not be a matter of any great financial significance to the physical therapists or the employer. That is, the revenue generated by treating one patient would be counterbalanced by the revenue foregone due to inability to treat the other. A decision to continue treatment would not constitute "overutilization" of physical therapy services under the principle discussed above, in that the primary motivation would not be to further the financial self-interest of the physical therapists or their employer.
However, the EJC believes that, quite apart from the principle discussed above concerning treatment given primarily to further the physical therapist's financial interests, a physical therapist properly may consider the impact on other existing or would-be patients of a decision to continue treating a patient for whom the prognosis is very poor. The EJC believes that a physical therapist would not be acting unethically in deciding to terminate treatment of one patient in order to be able to provide treatment to another patient(s) more likely to benefit from physical therapy services. In addition, as noted above, it might be entirely permissible for the physical therapists in your department to transfer to physical therapist assistants or other support personnel some elements of the care of the patient in question. This interpretation of the profession's ethical principles does not mean that it would be ethically impermissible for you and your colleagues to continue treating the patient in question. In the first place, the view that a physical therapist may discontinue treatment of one patient in order to serve another patient(s) more likely to benefit from physical therapy does not entail that a physical therapist must discontinue treatment whenever doing so would enable him/her to proceed to treat some such other patient(s). The view goes to what is ethically permissible, not to what is impermissible. In the second place, your inquiry contains no information concerning the impact (if any) on other patients or would-be patients on the decision to continue treating the patient in question.
The EJC would like to thank you for sharing your concerns regarding this case. We appreciate the thoughtfulness of your question and applaud your obvious commitment to practicing in an ethical manner. If the Committee can be of further assistance, please do not hesitate to contact us.
Ernest Nalette, PT, EdD
Chair, Ethics and Judicial Committee