Canons of Ethical Conduct and the Law

Canons of Ethical Conduct and the Law

John H. Harman *

Since its inception in 1947, the American Board for Certification in Orthotics and Prosthetics, Inc. has developed, perpetuated, and enforced a relatively straightforward and uncomplex set of rules for conduct in the profession of orthotics and prosthetics. Specifically, these rules are known as the Canons of Ethical Conduct and come under the jurisdiction of the Character and Fitness Committee, a permanent committee of the Board of Directors of ABC.

The impact of the Canons has been progressively larger as time has passed. In particular, as certification in the field of orthotics and prosthetics has become more and more important, the loss of suspension from such certification due to violations of the Canons of Ethical Conduct has become much more important.

Of course, canons of ethical conduct are nothing new. They have been around for hundreds of years. Virtually every profession that exists has some form of ethical code which is designed to bring a minimum level of moral conduct to bear upon the members of that profession. Of course, the nature and character of such codes differ vastly but their purpose is always important. Even insurers recognize that self-regulation through codes of ethical conduct reduces the claims experience of insurance companies with regard to malpractice and product liability insurance. Thus, the impact in the field of insurance is significant. Belonging to an organization which engages in self-regulation through a code of ethics is a basis and factor to be considered by the insurance company in setting rates for insurance.

Orthotics and prosthetics is a unique profession. It has evolved from that of being more of an industry producing products to that which now is a technology of products bounded by professional services which are an integral part thereof. Thus, the Canons of Ethical Conduct for ABC, which are its self-regulating guide, parallel the canons of other professions, such as law and medicine, in a somewhat simpler form.

Throughout most of this century, self-regulation was accepted and encouraged as a fundamental aspect of professionalism. Indeed, professional self-regulation was long regarded as necessary to set high standards and to protect the public from the unscrupulous or incompetent. Even the Supreme Court of the United States has stated that the ethics of a profession are but the consensus of expert opinion of the necessity of such standards. Indeed, for the first three quarters of the twentieth century there was not one decision by the courts involving matters which questioned self-regulation in the professions.

However, in the last decade self-regulatory efforts have come under sharp and increasing attack. In various cases, the courts have held that various aspects of codes of ethical conduct violated fundamental antitrust laws and related legal principles. Prices set by ethical codes in minimum fee schedules have been stricken. Prohibitions against competitive bidding have been abolished. Likewise, prohibitions against advertising and solicitation have been eliminated.

Further, the courts have held that associations which engage in standards-setting may be liable for improprieties promulgated in relation to such standards that affect competition.

Self-regulation is particularly important in the professions because, to the extent that market forces do not function as effectively as in ordinary commerce, self-regulation can offer a degree of consumer protection that otherwise would be provided by competition.

The premise, and thus the promise, of professional self-regulation is that it will raise the quality or lower the cost of services in areas in which lay persons, because of a lack of sophisticated training, are not particularly able to achieve these goals.

However, the system has not functioned as envisioned. Professions have failed to one degree or another to effectively eliminate from their midst those who have abused their position. Professional dicipline has became more and more the problem of state agencies and not the professions themselves.

Worse still, those who were supposed to regulate themselves in the public interest sometimes chose to regulate themselves in their own interest. Finally, as social values evolved, some self-regulatory positions that had been adopted to protect the public came to be perceived as being selfishly motivated. Restrictions on professional advertising, for example, were imposed out of a conviction that any possible informative value would be outweighed by the potential for deception.

As generally happens, the law has come to reflect the changes in society's attitudes. Where self-regulation once has been uncritically accepted, the change in the prevailing view led to the placement of limits on the process.

This is not to say that because of the application of antitrust laws and the active development by the courts in the last ten years of various theories which have nullified certain aspects of codes of conduct, such ethical codes are no longer valuable and should be abolished. Quite the contrary is true.

Codes of ethical conduct contain basic fundamental ingredients and have applications which are important to self-regulation by the professions. However, those codes must conform to the judicial guidelines laid down involving restrictions and limitations on their content, application, and enforcement.

It is still extremely important for the professions to regulate themselves and, indeed, their failure to do so may well be looked upon as equally as serious an impropriety as an over-zealous effort in self-regulation.