Topics: Patient's Best Interests; Physical Therapist's Self-Interest/Disclosure/Free Choice
Notice: Below is the opinion of the Ethics and Judicial Committee (Committee or EJC) of the American Physical Therapy Association (Association) issued in response to an inquiry from a physical therapist.
The Ethics and Judicial Committee has received your inquiry concerning the ethical implications of a physical therapist's receiving compensation, from a distributor of certain products recommended to patients/clients, tied to the quantity or size of the orders placed by the patients/clients.
You indicated that you have begun working in the area of ergonomics and that you have been recommending certain products for improving work sites, evidently without receiving any compensation from the company that is the source of the products. You are engaged in negotiations with one distributor of the products. In connection with these negotiations, the distributor evidently has raised the possibility of paying you a "reward" (presumably monetary), the size of which would be tied to the number of orders placed by your patients/clients subsequent to your performing a work site evaluation. You asked whether it is unethical to accept incentives from only one company for suggesting to your patients/clients that they utilize the company's product, when that company carries all the products that are needed. You stated that in your opinion the arrangement would be "good business for all the parties involved."
With few exceptions, it is hard to imagine a situation involving a physical therapist who has a financial interest in a product he/she recommends that would not present the potential for a conflict of interest and thus a breach of professional ethics.
The questions you raise involve the propriety of a physical therapist's recommending to patients/clients products in which the physical therapist has a financial interest. (For the sake of convenience, this opinion will use the term "patient" to cover both a patient and a client.) Under the Code of Ethics (HOD 06-00-12-23) (Code) and the Guide for Professional Conduct (GPC) a physical therapist owes an ethical duty to patients to whom he/she recommends a product without regard to whether the physical therapist has a financial interest in the use of the product. If a physical therapist has a financial interest in a product he/she recommends, then the GPC imposes additional obligations.
1. Patient's Best Interests
First and foremost the physical therapist must place the interests of the patient above any self-interest (Principle 2, GPC Section 2.1, 2.2). The GPC requires a physical therapist to attend to the patient's "physical, psychological, and socioeconomic welfare." GPC Section 1.1(B). A physical therapist's recommendation of any particular product should be based on a sound professional judgment that use of the product will be beneficial to the health of the patient (physical welfare) and that the product is a good value (socioeconomic welfare). The obligation to act in the best interests of the patient when recommending products applies without regard to whether the physical therapist has any financial interest in the use of the product.
2. Physical Therapist's Self-Interest/Disclosure/Free Choice
GPC Section 7.2(A) says that a physical therapist who recommends a product to a patient may not do so for his/her own financial self-interest but must act in the best interests of the patient; it thus implicates not only the objective quality of the recommendation but also the physical therapist's subjective motivation. This provision also says that when a physical therapist recommends a product in which he/she has a financial interest the physical therapist must make "full disclosure" of the interest to the patient. Finally, this provision says that a physical therapist who recommends a product in which he/she has a financial interest must maintain the patient's "right to free choice" of products.
In general, the prospect of financial gain often does influence a person's thinking, and the EJC can say only that a physical therapist who acquires a financial interest in a product must be especially attentive to his/her motivation for recommending the product to patients.
b. Right of Free Choice
Your inquiry did not address explicitly whether you contemplate making any agreement with the distributor that would restrict your communicating to your patients your judgment that they do not need the distributor's product, that they need some competing product, or that they do not need any product. Any such agreement would be extremely problematic, since it would amount to a contractual commitment to refrain from action that you might have an ethical duty (to one or more patients) to take. Although your inquiry did not broach the issue, the EJC would point out that agreeing to any limitation on your freedom to advise your patients in accordance with your best professional judgment would invite a conflict between your ethical obligations and your contractual commitments.
I. Recommendations – Compensated or Uncompensated
A physical therapist's primary ethical responsibility with respect to recommending products/services is to make sure that the recommendation is in the best interests of the patient. Principle 1 of the Code of Ethics obligates a physical therapist to provide compassionate care. The EJC's interpretation of this principle is that a physical therapist must be "guided by concern for the physical, psychological, and socioeconomic welfare of patients/clients." GPC Section 1.1(B). Principle 2 of the Code obligates a physical therapist to act in a trustworthy manner towards patients, which calls for the physical therapist to "act in the patient/client's best interest." GPC Section 2.1(A). Similarly, Principle 4 requires a physical therapist to exercise sound professional judgment, and the GPC specifies that the therapist's judgments shall be "in the patient/client's best interests." GPC Section 4.1(A). Principle 7 allows a physical therapist to seek only such remuneration as is "deserved and reasonable," and the GPC says that in recommending products to patients a physical therapist must maintain "their best interest." GPC Section 7.2(A). A physical therapist's financial interest in a product can undermine the therapeutic relationship by giving the patient the perception that the recommendation serves the best interests of the therapist rather than the patient.
The EJC's interpretation of Principle 4 is that a physical therapist must make "independent judgments regarding that care consistent with accepted professional standards." GPC Section 4.1(B). Principle 6 requires a physical therapist to maintain high standards for physical therapy practice, and the GPC says that a physical therapist must "evaluate the efficacy and effectiveness" of new techniques (and, by clear implication, products) before utilizing them. GPC Section 6.4(C).
As a threshold matter, a physical therapist who recommends a product to a patient must believe that use of the product will promote the patient's physical health. See GPC Section 1.1(B), a physical therapist must be guided by concern for the physical welfare of the patient. Furthermore, the physical therapist's belief in the utility of the product must reflect the exercise of "sound professional judgment." GPC Section 4.1(D). A practicing physical therapist must assess the efficacy and effectiveness of a new product before incorporating it into his/her practice. GPC Section 6.4(C).
According to GPC Section 1.1(B), a physical therapist must attend not only to the physical but also to the "socioeconomic" welfare of patients. That is, in recommending a product a physical therapist must believe not only that the product will be beneficial to the patient's physical condition but also that the product would represent a good value. Thus, a physical therapist would not be taking proper care of the patient's interests by recommending a clinically useful product that happens to be extremely overpriced (e.g., in comparison to competitive products), regardless of whether the physical therapist happens to benefit financially from the patient's use of the product.
II. Compensated Recommendations
The foregoing discussion applies without regard to whether the physical therapist has any financial interest in the patient's using a recommended product. In situations where the physical therapist does have such a financial interest, additional ethical considerations come into play.
A variation on the theme that a physical therapist must put the patient's interest first is the principle that a physical therapist must not place his/her own financial interests ahead of the interests of the patient. With regard to financial interests, the GPC states:
B. A physical therapist shall never place her/his own financial interest above the welfare of individuals under his/her care.
GPC Section 7.1(B). The Guide for Professional Conduct is careful to caution against financial exploitation of the physical therapist-patient relationship. The EJC's interpretation of the obligation to act in a trustworthy manner is that the physical therapist "acts to ameliorate the patient's/client's vulnerability, not to exploit it." GPC Section 2.1(A). See also GPC Section 2.1(B) ("A physical therapist shall not exploit any aspect of the physical therapist/patient relationship.").
The EJC believes that a physical therapist's receiving compensation for recommending products/services offered by some third party is not per se unethical. However, even though such an arrangement is not always and under all circumstances unethical, it inevitably raises serious questions.
With respect to compensated product recommendations, the GPC articulates a substantive obligation that relates to the physical therapist's motivation for making the recommendation and a disclosure obligation. As a substantive matter, a physical therapist who makes a compensated recommendation must be doing so because using the product is in the patient's best interests – not because it is in the physical therapist's financial self-interest. In addition, a physical therapist who recommends a product must disclose to the patient his/her financial interest in the patient's following the recommendation. A physical therapist who makes a compensated recommendation must respect the patient's freedom of choice with respect to use of the product.
The Guide for Professional Conduct says:
7.2 Endorsement of Products or Services
A. A physical therapist shall not exert influence on individuals under his/her care or their families to use products or services based on the direct or indirect financial interest of the physical therapist in such products or services. Realizing that these individuals will normally rely on the physical therapist's advice, their best interest must always be maintained, as must their right of free choice relating to the use of any product or service. Although it cannot be considered unethical for physical therapists to own or have a financial interest in the production, sale, or distribution of products/services, they must act in accordance with law and make full disclosure of their interest whenever individuals under their care use such products/services.
GPC Section 7.2(A). The first two sentences state the physical therapist's substantive obligation to recommend a product only when use of the product would be in the patient's best interests – not merely in order to enrich the physical therapist. The second sentence requires the physical therapist to maintain the patient's right of free choice. The third sentence says that a physical therapist's having a financial interest in a recommendation is not necessarily unethical, but that a physical therapist must disclose his/her interest when recommending a product.
A. Motivation – Priority of Patient's Interests
In general, the presence of a financial interest could influence the decision-making of any physical therapist, even if only at a subconscious level, so your behavior in the absence of a financial interest is not an absolutely sure guide to how you would behave under an arrangement with the distributor. For that reason, you should be particularly attentive to the possibility that the financial interest might distort your professional judgment.
B. Disclosing Financial Self-Interest
The disclosure obligation goes to trustworthiness, since a financially-interested physical therapist who fails to reveal his/her interest might mislead the patient into believing that the recommendation was purely disinterested. When a physical therapist recommends use of a product in which he/she has no obvious financial interest, a patient is likely to believe that the recommendation is disinterested. The EJC believes that it would be misleading for a physical therapist to permit a patient to assume that a recommendation was disinterested when, in fact, the patient's following the recommendation would serve to enrich the physical therapist. An informed patient well might choose to follow a physical therapist's recommendation despite knowing that doing so would benefit the physical therapist financially, and such a person would have no reason to complain that he/she was deceived about the physical therapist's stake in the matter. On the other hand, a patient who was unaware of the physical therapist's financial interest well might feel that he/she had been misled by the physical therapist's failure to disclose that the physical therapist had a financial interest in the matter.
C. Respecting Patient's Freedom of Choice
The Guide for Professional Conduct says that a physical therapist has an obligation to "maintain" the patient's "right of free choice relating to the use of any product or service." GPC Section 7.2(A). The EJC understands the statement to refer to two quite distinct ethical considerations.
Respecting (or "maintaining") a patient's freedom of choice can involve the degree of influence the physical therapist actually has over a particular patient. Patients must be considered to be vulnerable within the patient-physical therapist relationship due to their level of trust in the therapist and the power differential inherent in the relationship. Under certain circumstances a physical therapist might have such influence over a patient that his/her recommendation of a particular product would have the effect of negating the patient's freedom to choose some other product. In such a case a physical therapist would have to be particularly zealous to make sure that his/her recommendation of a product in which he/she had a financial interest was motivated by concern for the patient's best interests – the disclosure of the financial interest still would be mandatory, but disclosure in such a case would have comparatively little practical significance.
Maintaining a patient's freedom of choice includes the very distinct restriction that a physical therapist may not make commitments to third parties that would impede him/her from giving every patient his/her best judgment as to the product(s), if any, that the patient should use. For example, if a physical therapist believes that a patient would do well to use Product A (in which the physical therapist has no financial interest), the physical therapist surely should so advise the patient, even if the physical therapist has a financial self-interest in the patient's using Product B. A physical therapist who agreed with the seller of Product B not to recommend any competing products would be making a contractual commitment to refrain from actions that he/she might need to take in order to serve the best interest of one or more patients. Complying with such an agreement clearly would be unethical in any case in which the physical therapist refrained from recommending the product he/she truly believed the patient should use.