Doctors as fiduciaries: do medical professionals have the right not to treat?

摘要

In the first part of the paper, the author discusses the origin and obligation of the medical profession and argues that the duty of fidelity in the context of a patient–professional relationship (PPR) is the central obligation of medical professionals. The duty of fidelity entails seeking the patient’s best interests even at the expense of the professional’s own, and refusing to treat a “risk-patient” infected by SARS is a breach of fidelity because the medical professional is involved in a situation of conflict of interests and places his/her own health interests ahead of the patient. The author attributes the failure to the fact that professional ethical codes are not legally enforceable, and this failure at the microethical level damages the integrity of the profession at the macroethical level. The author argues that professional autonomy must be subordinated to professional fidelity for the medical profession to survive as a social institution. In the second part of the paper, the author shows that the PPR has most of the important attributes of a fiduciary relationship, and analyzes several important court cases in some common law jurisdictions to illustrate the increasing importance of fiduciary law in adjudicating disputes between patients and medical professionals, and appeals to law courts and legislatures to apply more stringent fiduciary principles on the medical profession to ensure that the professional duty of fidelity is enforced and the goal of medicine fulfilled for the interests of members of the community who has established the medical profession in the first place.