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Volume 6, Number 1

FREEDOM OR JUSTICE AS THE BASIS OF PHYSICIAN AUTONOMY

FRANCIS B. KELLY, MD

The introduction of Medicare to Canada has brought many changes in the delivery of health care and has produced tension at all levels of the community. This paper proposes an analysis of the 1986 Ontario physicians' strike. The value of this analysis is not limited to Ontario but can be applied to the larger Canadian community. I propose to reject the rationale of the defense of professional freedom used to justify strike action and replace it with a new value, justice, which includes the concept of freedom. Rather than invoking freedom to justify strike action, one could invoke justice to justify nonstrike action. However, the profession and society are left with the difficult task of seeking justice by just means. This goal is difficult because physicians now have two relationships - one with the patient and one with government. Justice, defined as right relationships, offers us a place to begin in addressing this difficult reality. The Ontario strike provides an opportunity to ponder the lessons of the past in order to live effectively in the present and build a better future.

In 1967, Canada introduced a national medical-care program funded by a cost-sharing arrangement between the federal and provincial governments. Each province administers its program independently and negotiates a tariff with its physicians. Usually, the health-care plan pays the physician a percentage of the tariff negotiated -for example, 90 per cent. In April 1984, the federal government passed the Canada Health Act, which forbids any charges by physicians and hospitals on the grounds that this practice impedes access, especially by patients with limited means. The Act empowers the federal government to withhold from federal-provincial transfer payments, dollar for dollar, the amount billed patients by physicians and hospitals. It allowed a three-year grace period to give the provinces time to get "onside." Most provinces and provincial medical societies complied without much resistance (New Brunswick terminated its hospital charges in April 1987). However, in Ontario - Canada's largest, most populous, most industrialized, and economically most favored province -physicians responded with the longest medical strike in Canadian history. This was not the first such experience for Canadians: in 1962, physicians in Saskatchewan had gone on strike. In 1988, only a last-minute settlement averted a strike by physicians in Manitoba. Other countries have had similar episodes; indeed, in 1984 alone, physicians were on strike in Australia, Greece, Israel, Italy, Japan, Nigeria, and Uganda (1, p. 1510). This paper examines the Ontario strike in its particular socioeconomic, geographic, and historical contexts, and suggests an alternative approach to that chosen by the Ontario Medical Association in June 1986.

BACKGROUND: "Socialized" medicine (as Canadians know it) began in Saskatchewan in 1962. The decades since have seen tremendous social changes to which the medical profession has had to adapt. Previously, the physician's principal and almost exclusive contact in performing his duties was with the patient. Today, the physician relates also to a bureaucracy - the agent of government in the administration of health-care services. What, heretofore, was relatively simple, singular, and under the control of the physician - the physician-patient relationship - has become complex, compound, and no longer under his control. Added to his agenda is the physician-government relationship, which requires different skills and different methods of interaction. Also, these relationships must be balanced one with the other. In addition to the socialization of medicine, the burgeoning of technology has brought new successes, but this technology is costly (2); indeed, without a medicare plan, most patients could not afford the services they require.

In earlier years, patient care was based on a beneficence model: now, many patients and some doctors demand a model based on autonomy. This paper is primarily concerned with medical autonomy in dealings with the government. The community expects universal health care based on the concept of social justice in a system that makes high-cost technical advances available to all. In the past, conflicts were worked out individually between patients and physicians; now a new range of "conflicts" have arisen between physician and government. The physician can no longer focus solely on the individual and his needs, but must now also consider the goals of society. The principle of autonomy for the physician vis--vis his relationship with government is being challenged by the principle of justice due the recipient of health care.

Furthermore, society has come to demand health care as a right. Regarding this, Siegler has sounded a cautionary note: The claim to health care fixes our attention on health so that, in claiming medical care as a right, one asserts a claim to health itself. He believes that society can claim access only to the process, but not to the outcome (3).

The Canadian medical model has three built-in sources of tension. First, the federal government is committed to universal medical care. Second, consumers must have free choice of providers. Third, physicians must retain professional autonomy. These objectives come into conflict when the government accepts the reality of budget control and limited resources (4). The federal government has "capped" its contribution to the provincial plans. This sets controls on the budgetary factor without setting controls on the other factors: universality, patients' choice, and physicians' autonomy. Society - including patients, physicians, politicians, and the media - has yet to address, openly and honestly, the dilemma posed by unlimited demand in the face of limited resources. The 1986 Ontario physicians' strike can be seen as an episode in the course of society's gradual awakening.

THE ISSUE: June 1990 marks the fourth anniversary of the Ontario physicians' strike. At issue was the practice of charging patients for medical services. Some physicians charged up to the difference between the tariff negotiated (between the Ontario Medical Association and the government) and the tariff paid - hence the terms "balance billing" or "billing to tariff"; others charged beyond the negotiated tariff - hence the term "extra-billing." While the terms are not equivalent, they have a common element - that is, charging the patient directly for medical services. Only a small minority of physicians were involved in these practices, although in certain specialties and in certain regions, this minority was significant. Even though this was a minority practice, the majority of physicians agreed to strike. Therefore, the issue was not simply a financial one. The profession invoked the defense of freedom in its response to the ban on extra-billing. Two aspects of this event need to be developed further. First, the 1986 strike was not about "extra-billing"; rather, it was a symptom of a more profound disturbance - the erosion of the profession's place in the health-care system. This disturbance goes beyond the borders of Ontario. Events in other provinces since 1986 confirm this: more and more, the profession has less and less say in the medical workplace. Writing about the hospital, Ashley and O'Rourke, neither of whom are physicians, say that

the communal orientation of a hospital is primarily patient centred, but the patients will not be treated as persons if the professionals who care for them are themselves alienated by feelings that their own needs are neglected or their rights infringed. (5)

This comment is pertinent not only to physicians. Recent (1989) nurses' strikes in at least three provinces (British Columbia, Saskatchewan, and Quebec) reveal the nursing profession's struggle to find its place in the health-care system. (That nurses have engaged themselves in a power struggle is witnessed by the slogan adopted by the National Federation of Nurses' Unions for 1989: "Taking Power - Making Change.") Furthermore, the above comment from Ashley and O'Rourke reveals a parallel vulnerability between patients vis--vis physicians and physicians vis--vis government. This became evident in the 1986 strike. Patients were vulnerable to the action taken by physicians. Similarly, physicians were vulnerable to government action. A solidarity can be built on this common vulnerability and alienation.

The second issue derives from the defense-of-freedom rationale. Physicians invoked this defense in their withdrawal of services. However, the medical profession has earned the respect of the larger community because of past services. Such a withdrawal represents a radical departure from the past. Both defense of freedom and serving the public are values in our society. However, is it necessary that one be sacrificed for the other? More to the point, was it necessary to sacrifice the latter in 1986? These two values present a question to the medical community: What does the profession want? Furthermore, since physicians are a part of the larger community, the same question can be directed to society. It is in this context that one may examine the issue of freedom.

ANATOMY OF FREEDOM - FREE TO DO VS FREE TO BE: Our autonomy is threatened when someone or something imposes limitations on us. In the medical model, physicians' freedom is threatened (or sacrificed) when a third party (government) imposes limitations. For many, "freedom" means freedom of choice - a limitation of choice is a limitation of freedom. If I am not allowed to do something, I am not free. The focus is solely or primarily on the act itself in isolation from the agent. The emphasis is on having choice. However, freedom of choice carries its own refutation: the paradox of choice is that choosing one option eliminates others. Freedom of choice can exist, therefore, only as an absolute, an abstraction, and in stasis. It serves as a veto (external or internal) of any action. Freedom of choice asks no questions and accepts no responsibility for providing answers.

On the other hand, freedom seen as freedom of being leads to different conclusions. Freedom of being refers to the state or condition of freedom in the agent resulting from the act. Freedom comes from the act. The focus is not on the act but on the agent; however, the agent is not isolated from the act. The emphasis is not on simply having choice but on making a choice - one becomes free. Freedom comes out of the choice made; therefore, it is not an abstraction but finds meaning in its exercise. For this reason, it requires careful discernment if one is to avoid self-indulgence. Nor is freedom of being an absolute. Rather, it is related to other values, and these relationships are dynamic. This requires that we discern which values are being threatened. Freedom of being, therefore, allows for criticism and can be questioned: Does the freedom exercised by a member or a group in society promote, for example, justice?

Furthermore, history can be perceived to be static as well. For some, it is cyclical and therefore repeats itself. If we take this view, we find ourselves defending the status quo. On the other hand, history can be perceived as linear; it does not repeat the past but rather builds on it. If we take this view, we find ourselves building a society.

These distinctions in freedom and history are relevant to the June 1986 strike, which took place not in a vacuum but in a social, economic, political, and historical context. It is to be seen, as we ourselves are to be seen, in the context of post-industrial North American society, influenced by such values as individualism and independence, which emphasize materialism, consumerism, individual rights, and economic growth. A static concept of freedom and history tends to promote such a context. Here, it is not freedom but justice that becomes vulnerable. A dynamic concept of freedom and history asks, "What kind of society do we want to become?"

PHYSICIANS AS UNIONISTS: In the patient-physician relationship, the patient is usually the vulnerable party. In the physician-government relationship, the physician is vulnerable. Physicians seek a just hearing from society's agent, government; at the same time, the individual physician is committed to promoting justice on behalf of another, the patient. The physician is both powerful and impotent at the same time. In a strike action, the profession attempted to use its "power" to correct its impotence. This approach failed: positively, because it failed to accomplish what it intended, and negatively, because it eroded an important value (patient trust). The patient was used as an object -that is, as a tool in a labor dispute. The "power" of the physicians was impotent because the bureaucracy, having no clinical responsibilities, is not susceptible to strike activity. This presents a dilemma: physicians have a just cause but apparently lack a just mechanism by which to defend this cause.

Society respects the right to collective bargaining; however, such bargaining has become a regulated class struggle rather than a form of procedural justice -a test of strength, the success of which reflects the strength and skill of the employees rather than the justice of their demands. Greater justice will come from the validity of demands than from the bargaining process (6, pp. 24-25). However, a free-market society is predisposed to support the process rather than be sensitive to the demands. Physicians will need to consider the patient in any negotiation with government. Daniels states that

if health workers' unions fail to make a concern for patient care a central concern, they only divide themselves from the interests of other workers and ultimately weaken their ability to improve their situation and educate people about the connection between their interests ... and patients' interests in good health care. (6, p. 26).

Educating people about solidarity requires that one first recognize this solidarity.

Traditionally, physicians have refused to accept the employee model. In earlier days this refusal was valid; however, "socialized medicine" involves a new relationship - that is, a relationship with government. Marcus, writing from an American perspective, notes that powerful corporations have taken control of the health-care industry. This produces a dilemma analogous to the one above:

[Physicians] can continue to profess their devotion to an economic system that is unabashedly based on corn petition, acknowledging in the process that they have become the losers in a predictable if unequal power struggle. (1, p. 1508).

In this situation, the profession is at a considerable disadvantage if its members continue to think of themselves as entrepreneurs. Although the Canadian situation differs, the Manitoba experience with arbitration reveals the same dynamic - a struggle between unequal opponents.

The Canadian model, with government instead of private participation, allows for greater, although not necessarily full, recognition of the needs of society. Gillon has described three "hidden relations" medicine has with society: the contribution of social factors to disease; the influence of social factors on public and professional attitudes; and the power struggle between physicians and other groups (7). Several parties are struggling for power, and society must impose some form of regulation so that no single power becomes absolute. Unfortunately, any talk of regulation is usually directed at the other party: "[Social scientists] are in favor of changes in the status quo on a very wide range of social issues, but not on ... their own professional autonomy" (8). Is there a way to address this difficulty?

JUSTICE AS A BETTER SOCIAL OPTION: One of the difficulties in discussing justice is the fact that "there is no clarity as to what justice is" (9). A simple definition of justice is "right relationships" - that is, each party assumes its rightful place. This notion finds its origin in the ancient Greed root dik, which in turn is translated from the Hebrew cedeq, a term describing an attitude that forms and maintains an alliance or communion between two parties (10). Justice strives to be faithful to the demands of a relationship. Actions that destroy or weaken communal life are contrary to justice. On the other hand, just laws create harmony within the community rather than simply conforming to some external norm or constitution. This concept presupposes the human condition as social and relationship as covenant (11). Justice as right relationships seeks to create not winners and losers but an ambiance that recognizes both the self and the other as valuable and worthy. This de-emphasizes competition and favors community - that is, mutual recognition and respect. However, this idea of relationship as covenant is far removed from the contract relationship that seems to have dominated history since the Industrial Revolution. Modern political philosophies influence contemporary debate. This theme is well developed by Paulhus.

In attempting to put the justice issue in perspective, Paulhus presents two opposing worldviews. The classical view sees man as a rational being, at the summit of creation. However, the dignity of the person comes not from who he is (static) but from the end he pursues (dynamic). Since human activity involves us in reciprocal relationships with others, we can also speak of the end that society seeks. Therefore, the social is related to the personal; the common good (the end that society pursues) is related to the proper good (the end that the individual pursues). This presents two questions: What is the content of the common good? How are the two goods related? The common good includes both material and nonmaterial goods. Paradoxically, material goods multiply. Although the common good differs from the proper good just as the parts differ from the whole, there is also an identity since the multitude exists only in its members. Therefore, the common good must also be the proper good of the members. Since the final end of human association does not differ from that of the individual, the common good is not an alien good (12).

In this worldview, the role of authority is to exercise not power but prudence and reason in order to ordain the many to the common good. The ruler defends the common good by formulating good laws. This was known as legal justice. Because it ordered the action of individuals to the common good, it was a general virtue. On the other hand, distributive justice ordered the distribution of the goods held in common to the individual; therefore, it was a particular virtue (12, pp. 265-267).

In contrast, the modern worldview is quite different. With the advent of contract theory, the modern state became a reality outside of and distinct from individuals and small groups. As new economic structures emerged, society became distinct from the state, and the common good became the good of the state. Therefore, the common good is alien to the proper good. Furthermore, in modern society, emphasis is placed on individual rights. This promotes the primacy of individual justice, a situation in which the state protects individual rights and attempts to reconcile those rights when they conflict. Law becomes the arbitrary decree of the powerful rather than the expression of reason. Justice (legal) now becomes a particular virtue focusing on the individual. It defends the individual rather than the common good. We then judge individuals and society by what they are (static) and not by the end they pursue (dynamic). Therefore, we ask, "Which is better?" This leads to two answers. Totalitarianism subordinates the individual to society. The common good is the good of the state. It is alien to and victorious over the proper good. Liberals (economic) see the primacy of the individual. Here the common good is seen as the good of the individual neighbor or simply as an aggregate of individual goods. This perspective also sees the common good as alien (12, pp. 269-270). One therefore sees the ascendancy of the individual good and, at the same time, the descendancy of the common good.

The modern worldview can be seen as "analogous to the clamps that hold from the outside two pieces of wood that are being glued together. In a contractual society, one needs such an external force to unify the individual parts" (12, p. 273). On the other hand, "in the traditional [classical] view, ... legal justice, exercised by both the authority and the virtuous citizens, is the cement that holds the community together from within, thanks to its single-minded focus on the common good, the ultimate source of unity and profound solidarity in the community" (12, p. 273). The question "What kind of society do we want?" now becomes rephrased: What is the end that society seeks? This is what constitutes human dignity in the classical worldview. Therein one exercises the dignity of our human condition.

Gillon mentions several theories of justice. One theory has justice as a reward based on merit. We earn certain merit as in a sports competition. On the other hand, we are entitled to a proportional (mathematical) share of the common goods. In either case, the merit system falls short because there is no merit in being sick and those who are sick may make more than proportionate demands on the common good. Utilitarian and Marxist theories tend to focus on the needs of people to the point that both are prepared to override person rights. Their danger lies, not in their existence, but in their simplistic versions. On the other hand, libertarian theories tend to maximize personal liberty. This, carried to an extreme, overrides other principles. Rawl's theory of justice is based on two principles. First, people should have the maximal liberty compatible with the same degree of liberty for everyone. Second, deliberate inequalities are unjust unless they work to the advantage of the least well-off - for example, one may justify a higher tax on the rich to help the poor but not the reverse (13). It would seem that Rawl's theory keeps in focus, if not in balance, the value of personal liberty and its social context.

The foregoing shows that the personal and the social are related, even if the modern worldview sees the state as isolated from society. Since there is a relationship, it is important to avoid absolutes. Furthermore, it is important to identify the vulnerable party or principle. Justice as right relationship promotes respect of the self and the other. It does not by itself guarantee a just outcome but does offer some hope for a way out - not a way out of conflict, but a way out of struggling for victory at the expense of the vanquished. Seen in this way, the 1986 physicians' strike in Ontario offers a valuable lesson, not just for the medical community but also for the Canadian community at large.

SUMMARY: Among many other changes, socialized medicine has brought the physician-government relationship. This encourages the medical community to see itself and society in a new way. This new circumstance promotes the awareness of a social dimension, a context from which we come and in which we work. This does not allow for absolutes; rather, it requires a dynamic that seeks justice rather than defense of freedom. This dynamic is common to history, freedom, and the dignity of the human condition, both individually and collectively.

The 1986 Ontario physicians' strike poses a question to the medical community: What does the medical community want? The same question is directed to the larger Canadian community. In classical terms the question can be rephrased: What is the good that the medical community (society) seeks? Therein lies our dignity. We are challenged to take our language and consciousness beyond freedom as choice. The justice alternative allows us to disengage absolutes and recognize each other. This puts each in relationship to the other and allows each to recognize the other's role. To do so requires the language and consciousness of justice. Because the 1986 strike has lessons that go beyond both Ontario and the medical community, this disengagement is required of the media, the public, and the political community as well. Seen in this light, the Ontario physicians' strike of 1986 is an opportunity to be seized rather than an event to be forgotten.

Francis B. Kelly, MD
567 St. George Blvd.
Moncton, New Brunswick E1E 2B8


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* In this paper, the masculine pronoun is used generically to mean "humankind." FBK.