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'Strictly confidential'

by Simon Longstaff

It has been alleged that, in the days leading up to the last Federal budget (1999), a small number of medical practitioners gained access to strictly confidential information about planned changes to government funding for some of the most advanced (and expensive) diagnostic equipment available to medicine.

It has also been alleged that at least some of these doctors made use of this confidential information and manipulated orders for the relevant equipment. In doing so, the medical practitioners contrived to distort the intentions of the government and through their actions, cost taxpayers a small fortune. In other words, a few doctors seemed to have orchestrated a major scam.

At one level, assessing the ethics of such a situation would seem to be quite straightforward. For example, there are obvious problems for whoever made available the confidential information in the first place. If it were done deliberately, then the person responsible, for leaking the information, would have known that they were acting outside the bounds of their authority and that the doctors had no entitlement to receive information in advance of the general public. In such circumstances, it would be reasonable to conclude that the release of the budget information was wrong – even if it had never been put to use.

It is possible that the information was released by mistake. If this is what happened, then it could be argued that the person responsible for the leak should be acquitted of the charge of unethical conduct – but only at the cost of being judged either careless or incompetent. Indeed, the only possible justification for disclosing confidential budget information would be if the doctors had both a special right to know and an unshakable commitment to apply that information exclusively in the public interest. In this case, neither condition would seem to have been met.

Turning to the doctors, the ethical issues again seem clear – at least at first glance. Understood in its simplest terms, the doctors must have known that the information they received was not legitimately theirs to be used. It really doesn't matter how or by whom the doctors were informed. Even when governments break their own rules on confidentiality and orchestrate a 'leak', they do so in a public manner designed to avoid the perception that they are providing special access to some favoured group. Indeed, to do otherwise would be to court the charge of corruption.

All of this suggests that if the doctors received confidential information, then they should have refused to use it. If we think of information as property, then this information belonged to someone else. To use it would be similar to putting your foot on a two dollar coin dropped by a person, at the front of the queue, so that you can spend it later. The same would be true if the money was found by someone else and offered to you in the mistaken belief that it was yours. In neither case is the money yours to spend.

I suspect that some will be unnerved by this line of argument; especially those who regularly use information that they know they are not supposed to have. For example, I encounter many people, in business, politics and the like, who seem quite happy to make use of strictly confidential information that falls off the back of the proverbial truck. Their typical response is to say that all is fair in love, war and business and that if a competitor makes a mistake, then it is perfectly ethical to take full advantage of their error and make use of the lost property – no matter how sensitive or valuable it might be.

One of the curious things to note about the people who engage in this practice is that they almost always argue that it would be wrong to put your foot on a coin lost by the person standing at the front of the queue. Or, so they say.

Now, if our allegedly errant radiologists take the idea of belonging to a profession at all seriously, then they will know that this requires a fundamental commitment to act in a spirit of public service. Indeed, this is what really distinguishes a member of a profession from other people in the marketplace.

While most people are officially allowed to pursue self-interest, members of the professions are supposed to put the interests of the community, their clients, patients etc before their own. This can involve significant sacrifice by individuals for the sake of the community. In the days before we sacrificed common sense to the ideology of competition and 'economic correctness", society used to ensure that the professions enjoyed some reasonable benefits in return for their commitment. However, this old social compact has broken down; something that may be linked to the perception that the professional ideal of always acting in a spirit of public service has betrayed on too many occasions.

If the allegations about the radiologists are true, then this might be taken as further evidence that naked self interest will always win the day and that the ideal of professionalism should be quietly consigned to the dustbin of history. After all, how could any serious doctor justify the kind of scam that has been alleged?

The only justification available to the doctors would be that they used the leaked information entirely for the benefit of their communities. For example, they might say that without the leaked information (and the opportunity it provided) it would have been impossible to afford vital equipment without which many people would die for want of proper diagnosis. They might then prove that not a single cent of the contrived windfall ended up in their pockets. In short, they might argue that the ends justify the means and that a little bit of dishonesty is acceptable if it is all for the good of others.

It's an argument that people tend to reject when it's made by politicians, whether or not it would be accepted if made by radiologists is yet to be seen. I suspect not.

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