Is “My Patient’s Agent” Always Justified?

Kelsey Berry

Is a physician always justified in acting as his or her patient’s agent?

This question is familiar to clinical and population-level bioethicists alike, though I hesitate to say that it is age-old. There are a variety of ways to approach a response to this question, as evidenced by extensive treatment of this topic in the philosophical and bioethics literature (which I will not survey here). One popular approach involves raising candidate circumstances that may justify deviations from the principal-agent relationship that obtains between physicians and patients* – for instance, ethicists might consider whether a physician is justified in deviating from acting as his or her patient’s agent under circumstances in which (a) the action that is in the best interest of the patient conflicts with the action that in the best interest of the population health, (b) the action that is in the best interests of the patient requires inefficient use of community resources on some criteria, or (c) what the patient perceives to be in his or her best interests conflicts with what the physician recommends, etc. This list is woefully inexhaustive, but it highlights a theme in this thread of argumentation. In each scenario, we’re invited to accept the initial assumption that the physician is justified, if not all of the time, at least most of the time, in acting as his or her patient’s agent. Then we are led to consider whether the candidate circumstances raised qualify as an exception to this rule.

The often-unarticulated premise, that the physician is typically justified in acting as his or her patient’s agent, is not without philosophical support from several prominent theories. We also have pragmatic reasons to begin with this premise, for there are few specific actors (to whom we can easily point) that compete with the patient for a principal-agent relationship of the type that obtains between a physician and his or her patient. Of course, other patients under care are obvious contenders, as are other potential patients. Though adjudicating between a physician’s obligations to both existing and potential patients raises interesting issues, the conflicts these principal-agent relationships give rise to still trade on the basic assumption that the physician has reason to maintain the basic fiduciary relationship in most circumstances.

Another contender that may lay claim to physicians as agents is the abstract entity of population health. This entity seems to be an uneasy occupant of the principal role; physicians’ actions on behalf of increasing or protecting population health may not channel a single unified will, and such actions cannot be said to be owed to any individual in particular. Thus, casting population health as an alternative claimant to a principal-agent relationship of the type that obtains between physicians and patients seems to overlook important differences between individuals and groups that give rise to different kinds of obligations and duties. This, rather than the adjudication of claims between patients, all principals related to the agent in the same way, is a topic I hope to explore further.

As a first step in this exploration, I hope to specify the features and circumstances of a physician-patient relationship that justify a physician acting in the best interest of a patient. It will help, I think, to take an approach that diverges from the above mentioned argument theme – as a first step, I will assume a prior principal-agent relationship justifiably exists between a physician and a specific non-patient principal, and then as a second step I will raise candidate circumstances under which a physician is justified in deviating from such a relationship in order to act in the best interests of his or her patient. Changing the case in this way, I moved from the question, “given which circumstances can a physician justifiably deviate from the traditional physician-patient relationship,” to a new query “given which circumstances can a physician justifiably deviate from another principal-agent relationship in order to act as a patient’s agent?”

Stay tuned to see if this will be a fruitful exploration.

*Further specification of terms will be necessary as I go forward, including defining the content and expectations of a principal-agent relationship in any context, medical or otherwise.

kelseyberry

kelseyberry

At the conclusion of her fellowship year, Kelsey Berry was a PhD candidate in health policy and ethics at Harvard University. She holds a BA in political philosophy and neuroscience from Princeton University. Kelsey's research interests include theories of justice in global health, partiality and fairness in resource allocation, and ethical issues in the health of vulnerable populations. Kelsey was a 2014-2015 Student Fellow at the Petrie-Flom Center, during which she worked on a research project entitled "Rights and Duties Against Conditional Funding Agreements in Global Aid." The paper presents a normative argument for holding global health development assistance channeled through non-governmental organizations to standards of egalitarian justice, and assesses PEPFAR's "anti-prostitution pledge," which was challenged in a landmark 2013 Supreme Court case, relative to these standards. Kelsey's other work includes empirical research on issues in mental health policy, like assessing progress in achieving equitable insurance coverage for mental health disorders subsequent to the 2008 federal mental health parity law and the Affordable Care Act. She planned to continue such work with the Department of Health Care Policy at Harvard Medical School, and on a 2015-2016 training grant with the National Institute of Mental Health.

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