Further consideration of ethics may reveal the ethical field can be divided into normative ethics and meta-ethics.^[4] ‘Normative ethics’ attempts to develop moral principles or rules to guide our action and judge our behaviour, while ‘meta-ethics’ is concerned with the meaning of terms such as ‘right’, ‘justice’, ‘common good’, and ‘virtue’. One class of normative ethics is ‘practical ethics’ which considers those questions that arise in specific contexts, such as the biological sciences. It is here that bioethics is located, which includes ‘medical ethics’, ‘nursing ethics’ and ‘pharmacy ethics’ as subsets.

Lewins has in fact argued that any study of bioethical issues is dichotomous in nature in that it contains two distinctly different approaches.^[5] The first he termed the academic approach, which poses and attempts to answer questions of an ethical nature in health care, such as those relating to issues of abortion, life support and the allocation of resources. The second, the imperative approach, is where behaviour is standardised via modification and control through the development of certain structures, such as hospital-based ethics committees or the formulation of codes of conduct.

As stated previously, ethics is not just a set of rules or policies. This raises the question: if ethics cannot be neatly encapsulated as a set of rules or a ‘code of practice’, then does it play any significant role in the practice of pharmacy? The question can be answered in the affirmative, in part by stating that ethics provides a starting point when professional dilemmas are faced and issues resolved in a given situation. For example, if a regulatory body such as a board or advisory committee was given the task of developing a ‘code of conduct’ for practitioners, it would be sensible to first decide the underlying philosophy; in other words, what moral principles or values were going to guide the development of such code. It might then be decided that due to legislative requirements it was necessary to place the public interest at the forefront rather than the interest of practitioners. It might also be decided that the code would promote actions that were consistent with providing the most good for the least harm, or the greatest good for the greatest number. So, if the first principle of the code stated ‘The primary concern of the profession must be the health and wellbeing of both clients and the community’ that statement would be consistent with the public interest requirement of the legislation. If the first principle was further expanded to state: ‘The practitioner must exercise professional judgment to prevent the supply of products likely to constitute an unacceptable hazard to health’, the concept of providing the most good for the least harm would also be satisfied.

PHARMACY AS A PROFESSION

The Macquarie Dictionary defines a profession as a ‘…vocation requiring knowledge of some department of learning or science…’^[1] However, this definition could be considered unnecessarily narrow and not accounting for other factors beyond the mere existence of a body of knowledge. Appelbe and Wingfield have suggested a series of tests that characterise a profession in contemporary society.^[6] As well as an intellectual discipline and requisite standard of knowledge, these tests also include:

• a representative body of practitioners

• accepted standards of conduct

• the provision of service and advice which has as its core the interest of the patient or customer rather than the interest of the practitioner.

Alternatively, the concept of a profession could also relate to the contract that its practitioners make with society. Here practitioners would:

… agree to conscientiously serve the public interest, even when the public interest conflicts with self-interest. Based on this agreement society in return allows the profession certain privileges. The idea of self-regulation that most professionals enjoy is one of those privileges. The core of this privilege involves accountability to and sanctioning by one’s professional peers — a professional web that has agreed to serve the common good …^[7]

When applying the first of the tests suggested by Appelbe and Wingfield to pharmacy — an intellectual discipline and standard of knowledge — even the most cursory examination will reveal that to become a pharmacist a candidate must first pass academic examinations to graduate with an appropriate pharmacy degree and then generally demonstrate competency in the practice of pharmacy through exposure to a period of supervised practice in the profession and the successful undertaking of qualifying examinations. This process is recognised in law through (at present) state- and territory-based legislation that controls the registration of pharmacists and imposes certain obligations on their practice.

It is worth noting that the object of contemporary pharmacy registration legislation is to protect the public by ensuring pharmacy services are delivered in a professional, safe and competent way, rather than offering any particular protection to the profession — other than putting in place restrictions on those who may practise the profession. In addition, such legislation also aims to uphold standards of pharmacy practice and maintain public confidence in the profession.

Application of the second test — a representative body of practitioners — reveals the existence of a number of professional organisations that draw their membership from within pharmacy. Such organisations include, among others: the Pharmaceutical Society of Australia (PSA), the Society of Hospital Pharmacists of Australia (SHPA), and the Pharmacy Guild of Australia (PGA). These bodies may assist in the establishment of minimum standards of education, knowledge and services for the profession, defining competencies related to professional practice, as well as developing standards of behaviour (codes of ethics or practice) for professional work.

Application of the third and fourth tests — standards of conduct and service and advice – can be satisfied by the existence of relevant codes of ethics or conduct together with standards of practice that address matters relating to professional conduct, service and advice. In Australia the PSA has adapted the Code of Professional Conduct from the Royal Pharmaceutical Society of Great Britain Code of Ethics^[8] This has been adopted or otherwise recognised to one degree or another by Australian pharmacy registering authorities.

Professional conduct

Professional conduct can be based, not only on technical competence but also to a significant degree, on a code of ethics or professional practice, such as the PSA Code of Professional Conduct (the code). This code comes under the heading of descriptive ethics. It would be useful at this point to detail the code. In its preamble the code states:

Self regulation and self discipline are the foundation upon which the credibility of any profession rests.

This Code of Professional Conduct is the means by which the pharmacy professional may regulate itself and publicly state the principles by which members of the profession interact with clients, other health professionals and the community.

The Code has not been presented in a legally rigorous manner, nor does it present all circumstances which might be considered inappropriate or unacceptable conduct. Rather it establishes a set of fundamental principles to guide pharmacists in discharging their responsibility in relation to maintaining and improving the health and wellbeing of clients and the Australian community.^[9]

The code is founded on nine principles, or philosophical concepts, which are expected to be resilient over time. These principles are underpinned by a number of obligations which detail standards of professional behaviour. The following is a list of the nine principles, with brief commentary.

Neither the Society of Hospital Pharmacists of Australia Code of Ethics^[14] or the American Society of Health System Pharmacists Code of Ethics for Pharmacists^[15] include such a requirement.

Ethical decision-making and practice

For many practitioners, a code of ethics or code of professional conduct provides a way forward when considering practice-based problems with an ethical dimension and can form the basis for ethical decision-making. However, tensions will invariably arise when the ‘rules’ that are incorporated in such codes conflict with a practitioner’s own moral beliefs.

While there is, for example, no law that requires a pharmacist to dispense a medicine, or supply a good or a service, Principle nine of the PSA Code of Professional Conduct requires that ‘a pharmacist shall ensure continuity of care for the client in the event of … conflict with personal moral beliefs’ with an obligation ‘when required [to] assist and refer clients to another pharmacist in order to maintain service and care’. In addition, Principle two of the same code obligates the pharmacist to ‘…uphold the reputation of the profession and adhere to the legislation applicable to the practice of pharmacy …’. In a recent position paper addressing the ethical issues relevant to declining to supply, the PSA ‘… recognises and respects the right of individuals, including health professionals, to hold a moral belief on particular issues …’ and further recognises that ‘… at times these moral beliefs may impact on the roles undertaken by those health professionals …’.^[16]

The PSA position statement continues ‘[w]hile not legally binding, the codes of conduct may serve as a point of reference when the appropriateness of the professional conduct of a pharmacist is under consideration’. However, this statement may be providing advice that could be considered erroneous. It would seem not unreasonable that where a code or a standard has been adopted or otherwise endorsed by a registration board, the code or standard could arguably, by default, be legally recognised. It would be incorrect, therefore, to state that codes of ethics and codes of conduct only serve as a point of reference and are not legally binding.

While the rules of law and the rules of ethics are considered by some to be different, in that the law is enforced by the state while ethical rules are only morally binding, in the present context such may not necessarily be the case. Legislation may confer on a body with jurisdictional powers — such as a registration board — the power to develop or adopt a code or standard of practice. To ignore the principles of such a code or standard potentially results in a registration board or other body reasonably concluding that a registrant may be guilty of unsatisfactory professional conduct and hence subject to disciplinary action, even though the ‘offence’ that was committed was not specifically mentioned in any legislation.

While there is a lack of case law in such matters in Australia, recently the United States District Court issued an injunction directing the Board of Pharmacy in Washington State not to enforce their new pharmacist/pharmacy responsibility rules. The rule in question did not allow one pharmacy to refer a patient to another pharmacy for the purpose of avoiding filling a prescription due to moral or ethical objections. The matter was brought before the court by three pharmacists who believed they were being forced to supply emergency contraception when such an action conflicted with their personal beliefs. The injunction in this case was specific to the dispensing of emergency contraception; an appeal for a stay of the District Court’s injunction was denied.^[17]

The practice of health professionals is therefore regulated not only by the law and codes of practice (which may include standards and guideline documents), but also by their own belief systems. While specific codes of practice may not be mentioned in any Act or regulation, non-compliance could be interpreted by regulatory bodies, such as registration boards, as unsatisfactory professional conduct.

Unsatisfactory professional conduct

Although the nature of ‘unsatisfactory professional conduct’ in the legal sense is extensively addressed in Chapter 7, it is also relevant to any discussion of professional practice and ethics. The provisions in the pharmacy legislation in each of the jurisdictions that identify the conduct or behaviour of a pharmacist that may result in disciplinary proceedings are not uniform. Such conduct is defined inconsistently in Australian regulatory pharmacy legislation where various terms are used including ‘unethical or discreditable conduct’, ‘professional misconduct’, ‘unsatisfactory professional conduct’, ‘unprofessional conduct’, ‘carelessness’, ‘incompetence’, ‘impropriatory’, ‘misconduct or infamous conduct in a professional respect’. Although the intention of the legislation in the various jurisdictions appears to overlap, the inconsistent use of terminology can impact on disciplinary outcomes as evidenced in the decision of an appeal to the Supreme Court of Tasmania in Adamson v Pharmacy Board of Tasmania [2004] TASSC 32. In this case a clear distinction was made between a pharmacist’s professional misconduct and unprofessional conduct, where the former was defined as ‘behaviour on the part of a member of a profession that would reasonably be regarded as disgraceful or dishonest by members of the profession of good repute and competency’, and the latter as ‘conduct may reasonably [be] held to violate or fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the professional of good repute and competency’. Professional misconduct was therefore regarded as a more grave categorisation of misconduct than unprofessional conduct.

Current legislation is more specific, using contemporary language to offer definitions of unsatisfactory professional conduct. As an example, the Queensland Health Practitioners (Professional Standards) Act 1999 (an Act providing a uniform system to deal with complaints, investigations and disciplinary proceedings relating to registrants of all health practitioners boards — other than the Queensland Nursing Council — in Queensland), offers the following definitions of unsatisfactory professional conduct:

(a) professional conduct which is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers; or

(b) professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of the registrant’s profession; or

(d) misconduct in a professional respect; or

(e) conduct discreditable to the registrant’s profession; or

(f) providing a person with health services of a kind that are excessive, unnecessary or not reasonably required for the person’s wellbeing; or

(g) influencing, or attempting to influence, the conduct of another registrant in a way that may compromise patient care; or

(h) fraudulent or dishonest behaviour in the practise of the registrant’s profession; or

(i) other improper or unethical conduct.

The term ‘discreditable conduct’ could also be added to any list defining unsatisfactory professional conduct as it was judicially interpreted in Mercer v Pharmacy Board of Victoria [1968] VR 72. Although it will be noted that ‘infamous conduct in a professional respect’, ‘misconduct in a professional respect’ and ‘conduct discreditable to the profession’ still appear in definitions, in disciplinary actions the definitions most often relied upon in are those included at (a), (b) and (h).

(a) any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the pharmacist in the practice of pharmacy is significantly below the standard reasonably expected of a pharmacist of an equivalent level of training or experience;

(g) any other improper or unethical conduct by a pharmacist in the course of the practice or purported practice of pharmacy (including, for example, commission of sex or violence or drug related offences).