Topics: Conflict of Interest (in treating fellow employees); Privacy/Confidentiality; Adequacy of Resources
Notice: A physical therapist sent the Ethics and Judicial Committee an ethics inquiry by e-mail of July 5, 2000. Below is the text of the EJC's response of September 7, 2000 (not including the identity of the requester):
Dear [name deleted]:
The Ethics and Judicial Committee (EJC) discussed your e-mail query at our meeting held the weekend of July 15-16, 2000. We wish to thank you for sharing your concerns regarding whether possible ethical issues exist related to a new policy your employer has informed you they plan to implement. We are pleased to offer comment in response.
According to your e-mail, your employer (the "corporation") operates a skilled nursing facility (SNF) specializing in the treatment of Alzheimer’s patients. The corporation has implemented a policy that requires the therapy department of the institution (presumably where you are employed as a physical therapist) to "act as first responders, case managers, and providers of physical therapy to injured employees." You are concerned this poses an ethical dilemma for you/your department. It appears that you have three major areas of concern you believe would create a breach of our Profession’s Code of Ethics if you (and your department) were to comply with the policy. These three issues in summary are:
1. Treating fellow employees presents a conflict of interest between you (your department) and the injured employee.
2. There is concern about the ability to ensure the privacy/confidentiality of the employees under your care.
3. The existing equipment/facility is inadequate and inappropriate to treat this population.
Though you did not cite which Principles of the Code of Ethics you felt this policy would violate if complied with, it is necessary to identify each Principle specifically in order to effectively assess whether there is a breach of the Code. This is a little hard to do without knowing the details of the policy, so we had to speculate somewhat as we discussed your concerns.
As you may know, the APTA's House of Delegates recently revised the Association's ethical principles. See Code of Ethics (Code) (H0D 06-00-12-23, replacing HOD 06-91-05-05). The EJC, which is responsible for interpreting the Code, has not yet completed the task of revising the Guide for Professional Conduct (Guide) to reflect the adoption of the new Code. However, the Principles of the new Code of potential relevance to your inquiry are substantially similar to the corresponding provisions of the prior Code. The EJC's response, therefore, will refer to the Principles of the new Code and to sections of the current Guide (the numbering of which is keyed to the old Code). The EJC believes that your inquiry implicates the following Principles of the new Code and the associated provisions of the Guide:
- Principle 1 (old #1): Guide: 1.1, Attitudes of Physical Therapists, Section A., and B. Guide: 1.2, Confidential Information, Section A.
- Principle 4 (old #3): Guide: 3.1, Acceptance of Responsibility, B., C. Guide: 3.3, Provision of Services, A., B., E.
- Principle 7 (old #5): Guide: 5.1, Fiscally Sound Remuneration, A.
- Principle 9 (old #7): Guide: 7.1, Consumer Protection, Section C. Guide: 7.2, Disclosure
A. Conflict of Interest
The EJC does not believe that the self-interest of a physical therapist engaged in treating SNF employees in the setting you describe would be in conflict with the interests of the patients such as to make it unethical for the therapist to treat such patients. Furthermore, the EJC does not believe you have identified any conflict between the interests of the SNF employees and those of the employer, of such clarity or severity that it would be unethical for a physical therapist to treat patients in such a setting.
Regarding your concern that the corporate policy presents a conflict of interest, nearly all of the Principles cited potentially have relevance. Perhaps the most critical Principle related to this concern is Principle 4 (old 3), "A physical therapist shall exercise sound professional judgement", with corresponding detail in the Guide 3.1 "Acceptance of Responsibility", Part C.: "Regardless of practice setting, physical therapists shall maintain the ability to make independent judgements." It is critical in order to ensure that all Ethical Principles can be adhered to, that physical therapists retain the responsibility (or right if you will) for the clinical decision-making as it relates to the physical therapy care of these patients. If the policy specifically prevents this in some manner, then indeed this would pose a potential conflict. On the other hand, presuming that the employer leaves the clinical care, management and decision making in the hands of the physical therapists, then there is no conflict of interest because the therapist can (and must) assume the responsibility to make decisions that are in the best interests of the patient (Principle 1, Guide: 1.1 B). This would still be true even if by policy the employer places some incentive or reward for (presumably) minimizing care as part of the policy. A physical therapist's practicing in a setting in which he/she faces incentives or disincentives, or other similar "pressures," to limit care does not by itself represent a breach of ethics. The breach occurs only when the therapist places his/her own self-interest (or that of his/her employer) ahead of the best interests of the patient, a violation of Principle 4 (old 3), Guide 3.3, Section B., and E, and Principle 7 (old 5), Guide: 5.1, section A. In our healthcare environment we are continually confronted with financially-based incentives or disincentives that are often blamed as the cause of unethical under or over utilization of physical therapy services. Unfortunately it is not these pressures that are unethical, it's when we place our own self-interest or that of our employer ahead of the patient's best interest and their clinical needs that unethical conduct occurs. Again, the key element here is whether (by policy) the physical therapist retains the ability to make independent clinical decisions (in collaboration with the patients and other individuals involved in their care). If that is preserved then the therapist can, and must, provide care that is in the best interests of the patient, and is in accordance with the Code of Ethics. The only situation where this might be compromised is if the therapist providing the care is also the injured employee's supervisor, or has other employment "authority" over the individual. That situation should be avoided, as it does present a potential conflict. Another point to consider when thinking about this "conflict" is that hypothetically at least, when the best interest of the employee (injured worker) are considered above all, then both the goals of the employer and the employee are met.
The EJC does not believe that a physical therapist participating in the treatment of SNF employees described in your e-mail would necessarily be guilty of a failure to respect the patient's privacy or to preserve patient confidences.
You raised a question concerning your service's ability to ensure the privacy of the employees under your care. Principle 1 of the Code (also #1 in the old Code) provides, "A physical therapist shall respect the rights and dignity of all individuals and shall provide compassionate care." The interpretation in the Guide, Section 1.2.A says, "Information relating to the physical therapist/patient relationship is confidential and may not be communicated to a third party not involved in that patient's care without the prior written consent of the patient, subject to applicable law." Your concern perhaps rests here. As with your first concern, as long as you adhere to well-accepted standards and specific laws regarding the release and disclosure of medical information, then you would not be in conflict with this Principle. Often by law, employers are allowed some degree of information about an employee's injury so they can appropriately manage their personnel. You need to understand what your legal obligations are regarding patient confidentiality and release of information regarding their care, and adhere to them. The issue about "privacy" is harder to comment on without being familiar with your facility, and your specific concerns. By itself, it is not unethical for someone to be observed by others in the "role" of a patient in the facility where they also are employed, unless it is done in a manner that compromises their dignity and/or their rights. Again, it is not uncommon for employees to receive care, in the facility where they work, from fellow employees. The fact they are doing so because they are injured on the job should not alter the responsibility of the therapist to respect their "rights and dignity" and "provide compassionate care" (Principle #1, and old #1).
C. Adequacy of Resources
The EJC recognizes that a facility's equipment and other resources might be so inadequate that a physical therapist would be unable to treat patients in compliance with the ethical obligation to act in the patient's best interests and to exercise sound professional judgement. However, the EJC believes that before a therapist refuses to treat patients on such a ground, he/she first should advise his/her employer of the objectionable conditions and attempt to have them corrected.
Your final concern regarding the inadequacy of the facility, and the lack of appropriate "measurement devices for evaluation, no opportunity for use of modalities, no exercise devices, and no appropriate charting tools" provokes many questions. You didn't say whether there have been efforts made to collaborate with the employer regarding this concern. This is important, because though it is the responsibility of the therapist to identify the basic equipment and facility requirements needed to provide competent care (Principle 9, old #7), it is also your responsibility to clearly articulate those needs to your employer before concluding that you can't or won't provide care to this population. Your employer does have the right to define the scope of services that the physical therapy department and its staff will provide in their facility, as long as it is within the scope of practice of Physical Therapy. Certainly, caring for employees who are injured on the job does fall within the scope of physical therapy practice. In return, you are responsible for identifying facility and equipment needs necessary to provide these services. Reasonable efforts have to be made to negotiate with the employer regarding these needs. The expectation might not be that you and your department will provide the full range of services often associated with this patient population. The question is whether you have collaborated with the employer to define the scope of this service and its commensurate needs.
In summary, a physical therapist's practicing under the circumstances you describe would not necessarily involve an impermissible conflict of interest or represent a breach of our profession's Code of Ethics. Indeed, it is not uncommon for employers to provide these services to their employees, and in a manner that is both ethical and competent. Whether the service is ethical and competent depends on the operational particulars. We recommend that you (your department) work closely with the employer to develop a comprehensive policy and appropriate procedures that specifically define the scope of this service, the equipment and facility requirements to provide it, and the assurances that it is done consistent with our profession's Code of Ethics and the APTA's Standards of Practice for Physical Therapy (HOD 06-96-16-31) and Criteria for Standards of Practice for Physical Therapy (BOD 03-00-22-53).
If we can be of further assistance with this issue, please don't hesitate to contact us.
Ernest Nalette, PT, EdD
Chair, Ethics and Judicial Committee