Clinical Independence – WMA – The World Medical Association

Adopted by the 59^th WMA General Assembly, Seoul, Korea, October 2008
And amended by the 69^th WMA General Assembly, Reykjavik, Iceland, October 2018

The WMA reaffirms the Declaration of Madrid on professionally-led regulation.

The World Medical Association recognises the essential nature of professional autonomy and physician clinical independence, and states that:

Professional autonomy and clinical independence are essential elements in providing quality health care to all patients and populations. Professional autonomy and independence are essential for the delivery of high quality health care and therefore benefit patients and society.
Professional autonomy and clinical independence describes the processes under which individual physicians have the freedom to exercise their professional judgment in the care and treatment of their patients without undue or inappropriate influence by outside parties or individuals.
Medicine is highly complex. Through lengthy training and experience, physicians become medical experts weighing evidence to formulate advice to patients. Whereas patients have the right to self-determination, deciding within certain constraints which medical interventions they will undergo, they expect their physicians to be free to make clinically appropriate recommendations.
Physicians recognize that they must take into account the structure of the health system and available resources when making treatment decisions. Unreasonable restraints on clinical independence imposed by governments and administrators are not in the best interests of patients because they may not be evidence based and risk undermining trust which is an essential component of the patient-physician relationship.
Professional autonomy is limited by adherence to professional rules, standards and the evidence base.
Priority setting and limitations on health care coverage are essential due to limited resources. Governments, health care funders (third party payers), administrators and Managed Care organisations may interfere with clinical autonomy by seeking to impose rules and limitations. These may not reflect evidence-based medicine principles, cost-effectiveness and the best interest of patients. Economic evaluation studies may be undertaken from a funder’s not a users’ perspective and emphasise cost-savings rather than health outcomes.
Priority setting, funding decision making and resource allocation/limitations processes are frequently not transparent. A lack of transparency further perpetuates health inequities.
Some hospital administrators and third-party payers consider physician professional autonomy to be incompatible with prudent management of health care costs. Professional autonomy allows physicians to help patients make informed choices, and supports physicians if they refuse demands by patients and family members for access to inappropriate treatments and services.
Care is given by teams of health care professionals, usually led by physicians. No member of the care team should interfere with the professional autonomy and clinical independence of the physician who assumes the ultimate responsibility for the care of the patient. In situations where another team member has clinical concerns about the proposed course of treatment, a mechanism to voice those concerns without fear of reprisal should exist.
The delivery of health care by physicians is governed by ethical rules, professional norms and by applicable law. Physicians contribute to the development of normative standards, recognizing that this both regulates their work as professionals and provides assurance to the public.
Ethics committees, credentials committees and other forms of peer review have long been established, recognised and accepted by organised medicine as ways of scrutinizing physicians’ professional conduct and, where appropriate, may impose reasonable restrictions on the absolute professional freedom of physicians.
The World Medical Association reaffirms that professional autonomy and clinical independence are essential components of high quality medical care and the patient-physician relationship that must be preserved. The WMA also affirms that professional autonomy and clinical independence are core elements of medical professionalism.

Adopted by the 58^th WMA General Assembly, Copenhagen, Denmark, October 2007
reaffirmed by the 206^th WMA Council Session, Livingstone, Zambia, April 2017
and rescinded and archived by the 73^rd WMA General Assembly, Berlin, Germany, October 2022

PREAMBLE

Noting information and reports of systematic and repeated violations of human rights, interference with the right to health in Zimbabwe, failure to provide resources essential for provision of basic health care, declining health status of Zimbabweans, dual loyalties and threats to health care workers striving to maintain clinical independence, denial of access to health care for persons deemed to be associated with opposition political parties and escalating state torture, the WMA wishes to confirm its support of, and commitment to:

Attaining the World Health Organization principle that the “enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being”
Defending the fundamental purpose of physicians to alleviate distress of patients and not to let personal, collective or political will prevail against such purpose
Supporting the role of physicians in upholding the human rights of their patients as central to their professional obligations
Supporting physicians who are persecuted because of their adherence to medical ethics

RECOMMENDATION

Therefore, the World Medical Association, recognizing the collapsing health care system and public health crisis in Zimbabwe, calls on its affiliated national medical associations to:

Publicly denounce all human rights abuses and violations of the right to health in Zimbabwe
Actively protect physicians who are threatened or intimidated for actions which are part of their ethical and professional obligations
Engage with the Zimbabwean Medical Association (ZiMA) to ensure the autonomy of the medical profession in Zimbabwe
Urge and support ZiMA to invite an international fact finding mission to Zimbabwe as a means for urgent action to address the health and health needs of Zimbabweans

In addition, the WMA encourages ZiMA, as a member organization of the WMA, to:

Uphold its commitment to the WMA Declarations of Tokyo, Hamburg and Madrid as well as the WMA Statement on Access to Health Care
Facilitate an environment where all Zimbabweans have equal access to quality health care and medical treatment, irrespective of their political affiliations
Commit to eradicating torture and inhumane, degrading treatment of citizens in Zimbabwe
Reaffirm their support for the clinical independence of physicians treating any citizen of Zimbabwe
Obtain and publicize accurate and necessary information on the state of health services in Zimbabwe
Advocate for inclusion in medical curricula, teachings on human rights and the ethical obligations of physicians to maintain full and clinical independence when dealing with patients in vulnerable situations

The WMA encourages ZiMA to seek assistance in achieving the above by engaging with the WMA, the Commonwealth Medical Association and the NMAs of neighboring countries and to report on its progress from time to time.

Adopted by the 45^th World Medical Assembly, Budapest, Hungary, October 1993,
revised by the 57^th WMA General Assembly, Pilanesberg, South Africa, October 2006
and reaffirmed by the 203^rd WMA Council Session, Buenos Aires, Argentina, April 2016

PREAMBLE

Medical practitioners have an ethical duty and a professional responsibility to act in the best interests of their patients without regard to age, gender, sexual orientation, physical ability or disability, race, religion, culture, beliefs, political affiliation, financial means or nationality.

This duty includes advocating for patients, both as a group (such as advocating on public health issues) and as individuals.

Occasionally, this duty may conflict with a physician’s other legal, ethical and/or professional duties, creating social, professional and ethical dilemmas for the physician.

Potential conflicts with the physician’s obligation of advocacy on behalf of his or her patient may arise in a number of contexts:

Conflict between the obligation of advocacy and confidentiality – A physician is ethically and often legally obligated to preserve in confidence a patient’s personal health information and any information conveyed to the physician by the patient in the course of his or her professional duties. This may conflict with the physician’s obligation to advocate for and protect patients where the patients may be incapable of doing so themselves.
Conflict between the best interest of the patient and employer or insurer dictates – Often there exists potential for conflict between a physician’s duty to act in the best interest of his or her patients, and the dictates of the physician’s employer or the insurance body, whose decision may be shaped by economic or administrative factors unrelated to the patient’s health. Examples of such might be an insurer’s instructions to prescribe a specific drug only, where the physician believes a different drug would better suit a particular patient, or an insurer’s denial of coverage for treatment that a physician believes is necessary.
Conflict between the best interests of the individual patient and society – Although the physician’s primary obligation is to his or her patient, the physician may, in certain circumstances, have responsibilities to a patient’s family and/or to society as well. This may arise in cases of conflict between the patient and his or her family, in the case of minor or incapacitated patients, or in the context of limited resources.
Conflict between the patient’s wishes and the physician’s professional judgment or moral values – Patients are presumed to be the best arbiters of their best interests and, in general, a physician should advocate for and accede to the wishes of his or her patient. However, in certain instances such wishes may be contrary to the physician’s professional judgment or personal values.

RECOMMENDATION

The duty of confidentiality must be paramount except in cases where the physician is legally or ethically obligated to disclose such information in order to protect the welfare of the individual patient, third parties or society. In such cases, the physician must make a reasonable effort to notify the patient of the obligation to breach confidentiality, and explain the reasons for doing so, unless this is clearly inadvisable (such as where telling the patient would exacerbate a threat). In certain cases, such as genetic or HIV testing, physicians should discuss with their patients, prior to performing the test, instances in which confidentiality might need to be breached.A physician should breach confidentiality in order to protect the individual patient only in cases of minor or incompetent patients (such as certain cases of child or elder abuse) and only where alternative measures are not available. In all other cases, confidentiality may be breached only with the specific consent of the patient or his/her legal representative or where necessary for the treatment of the patient, such as in consultations between medical practitioners.Whenever confidentiality must be breached, it should be done so only to the extent necessary and only to the relevant party or authority.
In all cases where a physician’s obligation to his or her patient conflicts with the administrative dictates of the employer or the insurer, a physician must strive to change the decision of the employing/insuring body. His or her ultimate obligation must be to the patient.Mechanisms should be in place to protect physicians who wish to challenge decisions of employers/insurers without jeopardizing their jobs, and to resolve disagreements between medical professionals and administrators with regard to allocation of resources.Such mechanisms should be embodied in medical practitioners’ employment contracts. These employment contracts should acknowledge that medical practitioners’ ethical obligations override purely contractual obligations related to employment.
A physician should be aware of and take into account economic and other factors before making a decision regarding treatment. Nonetheless, a physician has an obligation to advocate on behalf of his or her patient for access to the best available treatment.In all cases of conflict between a physician’s obligation to the individual patient and the obligation to the patient’s family or to society, the obligation to the individual patient should typically take precedence.
Competent patients have the right to determine, on the basis of their needs, values and preferences, what constitutes for them the best course of treatment in any given situation.Unless it is an emergency situation, physicians should not be required to participate in any procedures that conflict with their personal values or professional judgment. In such non-emergency cases, the physician should explain to the patient his or her inability to carry out the patient’s wishes, and the patient should be referred to another physician, if required.

Adopted by the 49^th WMA General Assembly, Hamburg, Germany, November 1997
and reaffirmed by the 176^th WMA Council Session, Berlin, Germany, May 2007
and rescinded at the 68th WMA General Assembly, Chicago, USA, October 2017

The British Medical Association (BMA) requests that the World Medical Association (WMA) supports a proposal, put forward by a network of medical organizations* concerned with human rights issues, for the establishment of a new UN post of rapporteur on the independence and integrity of health professionals.

It is envisaged that the role of the rapporteur will supplement the work already done by a series of existing UN rapporteurs on issues such as torture, arbitrary execution, violence against women, etc. The new rapporteur would be charged with the task of monitoring that doctors are allowed to move freely and that patients have access to medical treatment, without discrimination as to nationality or ethnic origin, in war zones or in situations of political tension. The role of the proposed rapporteur is detailed on pages two, three and four of this submission.

The original proposal was drawn up by a lawyer, Cees Flinterman, who is a professor of constitutional and international law at the University of Limburg, Maastricht, in The Netherlands. It has the support of a range of doctors’ organizations listed below*, whose interests are in protection of human rights and protection of doctors who act impartially in conflict situations. This group will be consulting widely and acting with the help of the International Commission of Jurists to interest the United Nations in this proposal.

The Council of the BMA supported this proposal after debate in 1996. It would lend considerable weight to the campaign if the WMA would also support this concept whose fundamental aim is to protect doctors and their patients in war situations and other cases where medical independence may come under threat from political or military factions.

PROPOSAL FOR A RAPPORTEUR ON THE INDEPENDENCE AND INTEGRITY OF HEALTH PROFESSIONALS

Goals

accepting that in many situations of political conflict (such as civil or international war) or political tension (such as during suspension of civil rights in a government-declared state of emergency), health professionals are often the first people outside military of government circles to have detailed knowledge of human rights violations, including violations of the right of populations to access medical treatment, a network of physicians is anxious that a range of national and international reporting mechanisms be established to achieve the following goals:

To monitor the role of health professionals working in situations where either their rights to give, or the rights of their patients to receive, treatment are threatened;
To make appeals for the protection of health professionals when they are in danger solely because of their professional or human rights activities;
To defend patients who are in danger of suffering human rights violations solely because of seeking medical treatment;
To encourage reporting of human rights violations by health professionals;
To analyse information about health professionals voluntarily adopting discriminatory practices. The group consider that existing UN reporting mechanisms need expansion. Key among proposals for new mechanisms is the development of a new UN rapporteur’s post which would link together relevant information emerging from other existing UN mechanisms and also suggest where other useful local and national reporting networks could be developed in the long-term. Therefore, on the basis of materials prepared by the Law Department at the University of Limburg, Maastricht and circulated by the Dutch medical group, the Johannes Wier Foundation, the group is campaigning for a new post of UN Rapporteur of the Independence and Integrity of Health Professionals.

Defining the Role

The potential role of a UN Rapporteur need not be exhaustively defined in advance since the experience of the individual and the practical applicability of the goals must have an influence.

It should include the following:

Receive, evaluate, investigate and report allegations of repression directed at health professionals or intended to prevent individuals receiving medical care. The rapporteur should be a clearing house for reports from individuals, groups of doctors, NGOs etc. and as well as simply receiving information, should pro-actively seek our information, including on-site visits.
To build upon existing principles as found in humanitarian lay and the codes of medical ethics applicable in armed conflicts to develop specific guidelines on the subject of medical impartiality in relation to the treatment of patients in situations of political or armed conflict.The World Medical Association and national medical association should be encouraged to disseminate such information to health professionals during their training. Arising also form such guidance should be the institution of mechanisms to help health professionals protect themselves in situations where human rights are at risk.
The rapporteur should also have a consultative role, seeking the views of international and national professional associations, human rights bodies and humanitarian organizations with regards to the protection of health professionals and the defence of the right to treat patients impartially.
The rapporteur should investigate reports of health professionals voluntarily transgressing guidelines about impartiality and non-discrimination.

Issues within the Remit

The fundamental concern is to protect the nature of the doctor-patient relationship from unjustified external interference although it will also include voluntary transgressing of impartiality by health professionals. The rapporteur’s role will be to ensure the independence, integrity and impartiality of health professionals.Ensuring these aims requires analysis of whether:
- the treatment decisions of health professionals can be carried out without coming into conflict with improper pressure from authorities;
- the physical integrity and ability of health professionals to act in accordance with their professional principles are both protected;
- health professionals are able to provide treatment on the basis of patient need;
- people in need of medical treatment are able to access it safely;
- health professionals are ensured their freedom of movement, in the capacity as medical care providers, and be able to have access to people in need of medical services.
Monitoring the degree to which external pressures influence negatively the provision of medical treatment will be within the remit of the rapporteur.
The remit will be global.
For lack of a reporting mechanism, health professionals are often disempowered form taking action on violations of patient rights. One of the issues of the rapporteur to monitor would be the introduction of national or local legislation, civil or military regulations or other rules prohibiting or limiting the provision of medical or nursing care to certain categories of patient.
It will be within the remit of the rapporteur to bring the evidence or reports of violations of medical impartiality, including those in health professionals co-operating voluntarily, to responsible bodies in the medical field and to the governments concerned.
Blanket restrictions on the medical or nursing services to be provided to members of vulnerable groups, such as refugees, asylum seekers, prisoners, minority ethnic groups, should be among the issues monitored by the rapporteur. The rapporteur should contribute to the empowerment of the health professionals to resist collectively the erosion of such patients’ rights.
Threats, intimidation or pressures on health professionals to discriminate against patients on the basis solely of non-medical related considerations such as ethics, religious or racial affiliation should be investigated even if the threats do not materialize into action.
Reports of health professionals being harassed or detained simply because of their profession or because of the exercise of professional skills will be investigated by the rapporteur. Similarly repressive measures designed to prevent health professionals reporting infringements of medical integrity will be investigated. Measures to encourage health professionals actively to document and report such violations should be put forward by the rapporteur in consultation with other bodies.
Reports of patients being impeded or discouraged from gaining access to the available medical treatment will be investigated.

Issues Outside the Remit

Just as important as defining what is within the rapporteur’s remit is the matter of clarifying those issues which fall outside it. We anticipate that this too will become clearer as practice and experience develop. In the meantime, however, we suggest that:

health professionals in every country should be educated about the ethical responsibilities they owe to patients and potential patients. Whereas such education is not within the remit of the rapproteur, acting as a resource for advice about medical impartiality would be within the rapporteur’s remit. In the long term this function should ideally be dealt with by delegation through medical schools, professional bodies and voluntary national networks;
while government measures to regulate aspects of care, (such as the equitable distribution of medical resources of the prioritizing of treatment on basis of need) would not generally be a matter for monitoring for the rapporteur, extreme measures likely to result in the disenfranchising of groups of patients from medical or nursing services would be monitored and investigated;
governments’ indiscriminate failure to provide health promotion or treatment to many or all sectors of the community does not fall within the remit of the rapporteur;
since a principal concern is to ensure access to medical treatment by patients who need and want it, the voluntary decision of some individuals or patient groups to exclude themselves (for example on religious or cultural grounds) from orthodox medicine does not fall within the remit of the rapporteur.

* organizations participating in the network include: Amnesty International; British Medical Association; Centre for Enquiry into Health & Allied Themes (Bombay); Graza Community Mental Health; International Committee of the Red Cross; Physicians for Human Rights (in Denmark, Israel, South Africa, the UK, & the USA); Turkish Medical Association; and, the Johannes Weir Foundation.