Ask any person: "What is a profession?" Medicine would certainly be mentioned. So would law. A profession is a way of earning a living, something one does, but not just any occupation. It involves higher education (the engineer? the scientist?) but also working with people and serving their needs. It is some higher calling, like the ministry or priesthood, perhaps the educator. Oh yes, doctors take the Hippocratic Oath, don't they? A profession requires commitment to ethical principles. You would want your children to belong to a profession when they grow up. But what is a professional? A basketball player? A violinist? Is it someone that helps you? A stock broker? An accountant? A military officer (once a legitimate vocation for the sons of the well-to-do)? Is it someone you can trust? A policeman? Is it someone with a high income and social prestige? A banker? What about "Yuppies," young urban professionals? They are well educated, ambitious, committed, affluent: doctors, lawyers, executives, entrepreneurs, movie makers, image makers.
If you asked a sociologist what characterizes a profession, you would probably get a much more specific answer. Sociological theory has looked closely at professions in terms of organization. Occupational groups from social workers to librarians to professional advertisers (marketers), following the model of physicians and lawyers, have developed university-based, spe cialized training programs, examinations, and professional organizations with a code of ethics, which can be used to include or exclude members of the professional group, a fraternity of like-minded individuals. The sociological view of a profession comments on the economic power of groups so organ ized--monopoly power is even mentioned--and the way professional organ ization is self-serving. It serves the economic interests of the professionals.
The sociological view of professions may sound jaded and cynical, espe cially to a professional who takes the ethical commitment seriously or even to the patient or client who is dependent on, has been helped by, and trusts his doctor or lawyer. But it must be acknowledged that the modern attitude toward professionals is ambivalent. Part of that ambivalence concerns the business or economic aspect of professional life. Part of it concerns the reliance on technique or knowledge in an abstract and seemingly uncaring way. However, there are two sides to ambivalence. The deeply felt apprecia tion for the professional stems from the ability to help someone in need. Yet even this is a source of ambivalence, for if there is anything that characterizes modern society, it is the desire to be independent and self-sufficient. The rejection of dependency is a virtue that becomes pathological in its extreme forms.
To consider oneself a professional places one in the middle of social tension. To be a professional means to place oneself in an attitude of service to one's fellow man, yet at the same time to earn one's living by the knowledge one has acquired. In this sense the professional and his or her patient/client are each dependent on the other. The relationship is symbiotic. To be a professional places one at the crossroads of an ethic of service and an ethic of economic opportunity. It would seem, gauging the pulse of modern sensibil ity, that the ethic of service is not as strongly felt as the ethic of economic opportunity. The sociological definition of a profession is convincing because it contains perceptible truth. But it is not the whole story. The ethic of service is inescapably part of what it means to be a professional.
The status of medicine as a profession has long gone unchallenged. If anything was a profession, it was medicine. Medicine, along with law and the clergy, the so-called "learned professions," were defined by the knowledge held by their members and by the application of that knowledge to the needs of fellow citizens. The relationship between the professional and those served was considered of special importance, and societies have traditionally placed sanctions on that relationship, such as the protection of confidentiality, nota ble in English common law dating back to medieval times. But the sanctity of relationships with professionals has always existed alongside an uneasiness about the mercantile aspects of professional practice. Doctors especially often enjoy abundant remuneration along with the respect accompanying well-pro vided service. Chaucer commented on this when he noted that among the Canterbury pilgrims were a physician and an apothecary:
They had known each other's for a goodly while
And each profited from the other's guile.
In the contemporary era, the criticisms of the medical profession have become so widespread that the idea of a profession being defined primarily by an ethic of service shared by its members is no longer entirely convincing. More prominent is the idea of a profession being defined by technical services traded in the marketplace. What does it mean for medicine to be considered a profession as distinct from a trade? Are the codes and traditions of ethics still relevant in defining medicine as a profession or will they have to be replaced by more explicit legal and regulatory definition?
Originally the word profession meant "to profess" religious vows. Medi cine was a profession along with the clergy because its members shared a common "calling," and law was considered professional through a similar educational background in the medieval university.2 University "professors" (the masters at the University of Paris) were first allowed to incorporate in the thirteenth century.3 The debate about whether guilds and guild-like groups exert true monopoly power over prices has yet to be settled.4
What is considered professional might best be understood in contrast with what is not. In athletics as in sexual activity, the designation "profes sional" merely implies getting paid for what others do for free.5 But the professional is also distinguished from the amateur by a greater level of proficiency that merits the monetary compensation. Thus some level of skill or expertise is generally held to be requisite for professional status. Reiser, Dyck, and Curran broaden this definition in a particularly useful way. They suggest that "Self-conscious reflection on standards of conduct is one of the defining characteristics of a profession."6
Thus professions are related to knowledge on the one hand and practice on the other. That places professions in an intermediate position between sciences and trades, with features in common with both but also features distinct from both.7 The literature distinguishing professions from trades is abundant,810 but in the twentieth century, as knowledge has come to mean scientific knowledge, the medical profession is increasingly identified with technical expertise. However, technical expertise is not sufficient to character ize a profession. The ethical dimension is also required.
A popular generalization in the sociological literature is that occupations are becoming "professionalized." Indeed courts and legislatures are witnessing challenges to professional territory as psychologists, nurse anesthetists, dental hygienists, and others lay claim to prerogatives that traditionally have been the exclusive domain of the medical and dental professions. But specialization, technical skills, and expertise do not suffice to establish a work group as a profession. What does? According to Wilensky, any occupation wishing to exercise professional authority must find a technical basis for it, assert an exclusive jurisdiction, link both skill and jurisdiction to standards of training, and convince the public that its services are uniquely trustworthy.11
The theme of trustworthiness is the pivotal criterion of professional status. The understanding of someone as a "professional" ultimately depends on the ability to trust that individual with personal matters. The various articulated codes of ethics of professional groups all stress the maintenance of the trustworthiness of members of the professional group through control of entry into and exit from the professional group and discipline of deviant members if necessary (for example, censure or removal from membership in the group, or removal of license). Table 1 illustrates the process of profes sionalization of a number of professions and would-be professions in the United States. It demonstrates that the route to professional status includes the establishment of university training programs, the formation of professional associations, and the presence of formal codes of ethics. The final step of public confidence is, of course, impossible to measure.
One of the most noticeable features of professional organizations, viewed in sociological perspective, is their attempt to control markets and promote self-interest. The theory of professional monopoly was developed by Max Weber, who described the following steps by which the medical profession, like all commercial classes, achieves monopoly power: creation of commodi ties, separation of the performance of services from the satisfaction of the client's interest (that is, doctors get paid whether or not the therapies work), creation of scarcity, monopolization of supply, restriction of group member ship, elimination of external competition, price fixation above the theoretical competitive market value, unification of suppliers, elimination of internal competition, and development of group solidarity and cooperation.12 Such careful delineation of an economic component to human motivation was truly radical in its time, but today it has become commonplace to reduce all human motivation to economic considerations.
The problem with this analysis of professional monopoly is that it is one-dimensional; it considers only economic motives and overlooks the benefit to the public that occurs from such things as the promotion of scientific medicine and efforts to maintain professional standards.
The basic issue is whether physicians can place concern for the public good ahead of their own self-interest. Trust (or trustworthiness) is the key stone of medical virtue in the traditional canons of medical ethics from the Hippocratic Oath to Sir Thomas Percival's code--a nineteenth-century British code on which the first AMA code was based--to the various versions of the AMA codes. Trust is the basis of what it means to be a professional and what it means to be ethical. From the antitrust point of view, any trust, even basic human trust, is suspect as a form of monopolization. Berlant, applying Weber's theory of monopoly to the medical profession, states the case very cogently:
The trust-inducing devices of the Percivalian code increase the market value of medical services and help convert them into commodities.... It also creates a paternalistic relationship toward the patient, which may undermine consumer organization for mutual self-protection, thereby maintaining consumer atomiza tion.... Through atomization of the public into vulnerable patients, paternalism results in the profession's dealing with fragmented individuals rather than bargaining groups. Moreover, by appealing to patient salvation fantasies, trust inducement can stimulate interpatient competition by increasing each patient's desire to see that nothing stand between doctor and himself. Much of the emotional power of the sentiment of the doctor-patient relationship resides in this wish of the patient to save himself at any cost to himself or others.13
Berlant offers a sharp attack on professional ethics from a particular ideologi cal perspective. But basically this attack is not just on professional ethics, but also on a kind of community in which people may not be autonomous and independent, but in which people may be dependent and in need of help that they willingly seek. This argument introduces a note of almost cynical suspi ciousness into a society of individuals who seem almost too willing to trust and to place themselves in the care of others. This is a crisis of confidence-- both for medicine and for our civic life in general: To what extent is it possible and necessary to trust and rely on others? To what extent is it possible to remain isolated, self-reliant, and autonomous human beings?
A profession's service ideal has several manifestations: a formal code of ethics, more personal ethical outlooks, and certain activities--such as licensure, specialty certification, accreditation of institutions, and training programs-- undertaken by a professional association to maintain standards of the group. It can be argued that such professional gatekeeping is an essential aspect of professional responsibility. However, a widespread perception exists that the restrictions that the learned professions have placed on themselves under the aegis of professional ethics have been motivated not in fact by "ethics" (in the sense of wanting to achieve a higher plane of moral conduct), but rather to serve the self-interest of the existing members of the profession.
Perhaps because of the ambiguous relationship of public interest and professional self-interest, the learned professions were considered exempt from the antitrust laws from the time of the passage of the Sherman Antitrust act in 1891 until the Supreme Court's Goldfarb decision in 1975, in which Virginia lawyers were found liable to charges of price fixing of the fees charged for title searches. The Goldfarb decision heralded a flurry of antitrust activity, most notably the suit by the Federal Trade Commission against the American Medical Association, the Connecticut State Medical Society, and the New Haven County Medical Association, charging that these professional organizations were in restraint of trade because their code of ethics prohib ited advertising. After a seven-year legal battle, this case was settled on March 23, 1982, when the Supreme Court split 4-4 leaving in place the lower court ruling that barred the AMA from making any prohibitive reference to advertis ing and the solicitation of patients in its code of ethics and further prohibiting the AMA from "formulating, adopting and disseminating" any ethical guide lines without first obtaining "permission from and approval of the guidelines by the Federal Trade Commission."14 Though advertising is the focal issue in this particular case, the ethics of the profession both as explicitly formulated in the AMA's "Principles of Medical Ethics" and as implicitly practiced, as well as the right and propriety of a professional association to formulate its own code of ethics, are being called into question.15, 16
The FTC suit hinged on the questions of cost, advertising, and the mercantile aspects of the medical profession. The position of the FTC is that the reason costs are high is because doctors have a monopoly on health care delivery and can thus maintain artificially high costs for their own profit. If doctors were not prohibited from advertising, it is argued, prices would come down because patients could shop for the best deals. FTC chairman Michael B. Pertschuk stated the case as follows: "One possible way to control the seemingly uncontrollable health sector could be to treat it as a business and make it respond to the same marketplace influences as other American business and industries."17 In other words, medicine could be better con trolled if it were understood as a trade and not as a profession.
The categorization of medicine as a trade is obviously an oversimplifica tion. The profession is inescapably concerned with the public well-being. Medicine is both a trade and a profession. It is certainly appropriate for the commercial aspects of medical practice to be regulated (or deregulated), but it would be a catastrophic mistake to assume that medicine is merely a trade and subject all aspects of professional regulation either to market influences or to the crude tools of antitrust litigation.
The courts have clearly recognized that professions have trade aspects. They have not eliminated the responsibility for professional self-regulation except in such instances in which such self-regulation may be in restraint of trade. For medicine the issue that the Supreme Court decided in FTC v. AMA is that the AMA's code of ethics cannot prohibit advertising. It remains for conscientious physicians to decide what constitutes ethical advertising.
Medical advertising is at the crossroads of two very different philosophies about what medicine should be and how professions should be regulated. The traditional view opposes advertising to protect the public from physicians who are too commercially oriented. The more prevalent contemporary view holds that medicine is indeed commercially oriented and thus cannot be trusted to regulate itself. To reconcile the best aspects of traditional profes sionalism with the need for greater public accountability, it is necessary to consider what might be ethical and unethical in advertising.
Would advertising of physicians' fees and services be a desirable and ethical thing? If increased competition through advertising could reduce medical costs, then it would be socially desirable unless lowered costs were achieved through a lowering of the quality of service or unless increased advertising created a demand for more services, further straining the econ omy beyond the approximately 10 percent of the U.S. Gross National Product that currently goes to health care. The cost/quality equation is always a delicate balance. Although costs are easy to measure, the values by which we assess quality are impossible to quantify.
Advertising is a multifaceted issue. It serves two very distinct objectives: (1) the dissemination of information, and (2) product differentiation, which economists define as public perception of differences between two products, even though such differences may not in fact exist. The AMA has traditionally held that dissemination of information is acceptable, but that product differ entiation or solicitation of patients is not.18 The physician was to be distin guished from the itinerant merchant of nostrums by deemphasizing the commercial aspects of practice and emphasizing professional ethics (actually standards that minimized the differences that might exist between physicians similarly credentialed and certified). Thus if someone were to develop ap pendicitis while traveling in an unfamiliar part of the country, it would not be necessary to shop for a physician who believed in the germ theory or a hospital that maintained antiseptic standards. This shopping would be taken care of by credentialing procedures. The physician would obtain patients not by direct appeal to the public, but by building a reputation in a community. Although the distinction between dissemination of information and product differentiation was dropped in the 1980 revision of the AMA "Principles of Medical Ethics," it remains an important distinction for physicians to keep in mind when contemplating the ethics of advertising. Advertising that provides information to consumers is ethical; creation of the illusion of differences through product differentiation is as unethical in medicine as it is in any business, even if not legally prohibited.
It could be debated whether advertising is ever ethical, though it is an accepted feature of capitalist societies. The ethical issue for advertising is whether advertising is truthful and whether there can be objectively measur able standards for judging the truthfulness of advertising claims. A more problematic concern is the way in which advertising plays upon people's unconscious wishes and fantasies: sex, greed, and the quest for power, status, and perfection. The scientific basis for advertising rests on the ability to identify and manipulate such longings and fears. When we speak of "the market" or "market forces" or "demand," we are generally talking about human wants and wishes.
Truthfulness in advertising was the concern when the field of advertising itself attempted to follow the course of professionalism in the early part of the twentieth century (see Table 1). At issue were the values that distinguished the professional advertisers from the retail-space merchants. The American Mar keting Association (another AMA) established university training programs and codes of ethics that promoted the scientific ideal of detachment and statistical analysis. This scientific vision of community and definition of people (as consumers) replaced the older, empathic, and value-laden world in which a merchant had a feel for what his customers (not consumers) wanted because he lived with them in the same community.19, 20 The transformation of medicine from an ethically based profession to a trade is nearly complete because it is commonplace to refer to the patient in the strictly commercial designation of "consumer."
The example of professional advertising is illustrative for the medical profession, not only because advertising promises (threatens?) to be such a conspicuous feature of contemporary medicine, but also because medicine's traditions of professionalism are derived from an era in which the physician participated in the life of the community in which he practiced. Knowledge of the patient as a person, as well as the patient's life history and social situation, has traditionally been deemed essential to quality care. At issue today for the profession of medicine is whether it will be possible to preserve the values of personal care that characterized the ideals of an earlier era. The ethics of medicine are derived from the time when medicine was a cottage industry. Will it be possible to maintain such ethics if medicine is transformed to assembly line efficiency?
It is paradoxical that medical ethics should be at the center of controversy about what is in the public interest. Ethical strictures against professional advertisement have a long and venerable tradition in the Western world, which stems from a view of professional life that cannot be easily reduced to economic analysis. The traditions represented by professional ethics stress the personal nature of professional practice. In the traditional model, trust is essential, for the patient/client must trust the professional to reveal such confidences as may be necessary to understand the problem. The professional is worthy of that trust according to (1) knowledge possessed and (2) such "professional" attributes as ability to keep confidences, to refrain from taking advantage of vulnerable patients, to put the patient's interests before one's own, and to refrain from self-aggrandizement at the patient's expense. It is out of such a view of professionalism that strictures against advertising arose.
The question of whether physicians should advertise cannot be settled until the prior question of what it means to be a profession is addressed. The economic analysis of market forces addresses a different concern from the concerns of professional ethics. The question is not whether doctors should be allowed to advertise, but what the trade-offs are with a strictly economic analysis of professional activities.
From the economic standpoint the question is this: Are there any reasons not to allow market forces to solve pricing and other problems? In other words, government regulation or professional self-regulation would be war ranted only if the market fails. This is not the only question of interest, however. The ethical concern must also be addressed; namely, can quality care be maintained if the economically most efficient methods of health care delivery are adopted? From this point of view, the FTC strategy of reforming the medical profession by treating it as a business fails at the outset because it fails to consider the issues of quality care that are so much the concern of physicians and patients alike.
The message for the medical profession from the current round of antitrust litigation is clear: unfair trade practices will not be tolerated. A more subtle message must also be recognized: The reputation of the profession and its ethics have become tarnished as the public has come to perceive profes sional ethics as a protective mantle under which professionals cloak self-inter est. This does not mean that the old ethics should be abandoned, but rather that they should be taken more seriously.
The doctor-patient relationship, spoken of almost religiously as the key stone of medical practice, has traditionally been a dyad in which the doctor answered directly only to the patient and his own conscience:
Doctor ⇔ Patient
In the modern era, financial considerations, even more than changes in technology, have transformed all parties in this relationship and added new ones:
Providers ⇔ Consumers
⇑ ⇑
⇓ ⇓
Third Parties
Patients have become "consumers"; doctors have become "providers"; health care has become a commodity; and "third parties," including insurance companies, social service agencies, and allied health professionals, as well as corporate shareholders, are very much part of the picture. The patient seldom appears privately (and confidentially) to the doctor for help. Likewise the physician does not answer only to the patient. The conscientious physician concerned about cost containment may be put in the position of limiting the resources given to a demanding or anxious patient. Still the appeal of a person in need of help and the response of a concerned physician remain the essence of medical practice. Though some would suggest that medicine should, in the interests of efficiency, be limited to treating just physical ailments, most responsible physicians still concern themselves with the im pact of disease and illness on people's lives and not just with the disease itself.
It is this broader concern of medical practice that professional ethics attempt to address and that is generally not understood to be an essential feature of a trade. The attempt to regulate the medical profession as a trade comes at a time when the activities of physicians are largely perceived as commercial and impersonal. Physicians must bear the responsibility for maintaining a broader concern for the patient as a person as part of their professional identity. To the extent that medicine fails in maintaining its professional ethical standards of public service and personal care, it is vulner able to the criticism of self-serving commercialism. To the extent that medi cine relies merely on technique and not on an ethic of service, it becomes merely a trade and not a profession.