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COPYRIGHT 2002 Stanford Law School
INTRODUCTION: A THERAPEUTIC APPROACH TO HEALTH CARE LAW
A. In Search of a Uniting Theme
Scholars have long noted that the field of health care law lacks cohesion. They speak in terms of the "pathologies" of health law, or its contradictory and competing "paradigms," which constitute a "chaotic, dysfunctional patchwork." (1) This conceptual disarray exists because, unlike other areas of law, no unifying principle or animating concern has yet been identified for the law of health care delivery. (2) For example, family law is concerned with rights and obligations arising from intimate relationships, environmental law is built around a set of core statutes, and intellectual property law applies general property principles to intangible constructs. The field of health care law, in contrast, is largely a creature of happenstance. As currently taught and studied, it consists of disparate areas of law and regulation that happen to apply to doctors, hospitals, and health insurers, categorized by the concerns that happen to have arisen in different decades. (3) At first glance, this is hardly a more cohesive body of law than a law of horses, as Judge Easterbrook once quipped about cyberlaw: "Lots of cases deal with sales of homes; others deal with people kicked by horses; still more deal with the licensing and racing of homes, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on `The Law of the Home' is doomed to be shallow and to miss unifying principles." (4)
It would be far more satisfying and enriching to find an organizing principle that not only makes the disparate parts of health care law cohere, but also distinguishes health care law from other bodies of integrated legal thought. (5) For a body of law to emerge as a distinctive field of practice and intellectual inquiry, it must be more than just the assortment of rules that result from applying other bodies of law to a particular economic sector or human activity. Health care law is not substantively distinctive unless there are one or more attributes of the medical enterprise that make it uniquely important or difficult in the legal domain, attributes that give rise to a set of novel and interrelated principles that deserve to be classified as a coherent and integrated academic and professional discipline.
A skeptic might claim that health care law exists only because it happens to fit an area of legal practice and therefore is justified by the economy of law school curricula. However, scholars in the field sense there are one or more unifying themes that are uniquely important to the field. The trouble so far is that each theme applies only to portions of the field and neglects certain central concerns. For instance, Rand Rosenblatt and Clark Havighurst advance competing principles of social justice and economic efficiency, (6) but these apply primarily to issues of insurance coverage, institutional structure, and the proper scope of government regulation, and not as extensively to relationships between individual patients and physicians. George Annas and others employ concepts of individual autonomy and dignity to address a broad range of patient care issues, (7) but these principles have only limited application to the macrolevel issues that are now so pressing in health care public policy. Consequently, Einer Elhauge convincingly argues that health care law is afflicted by a "pathology" consisting of competing and irreconcilable themes and principles borrowed haphazardly from other fields, "which in combination result[] in an incoherent legal framework." (8)
It would be naive to think that there is a single conclusive resolution of this fruitful debate. However, it is possible to formulate a thematic orientation that has broader and more fundamental relevance to many areas of health care law. This Article is an initial effort to articulate such a theme, using the somewhat grandiose concept of "therapeutic jurisprudence," adapted from mental health law. (9) The Article provides only a brief introduction to the broader theme, however, in order to develop more fully a particular application of therapeutic jurisprudence, namely, the role that trust plays in the structure and content of health care law.
B. Therapeutic Jurisprudence
Therapeutic jurisprudence, first developed by David Wexler and Bruce Winick in the field of mental health law. (10) asks what legal principles are most beneficial to patient welfare and consistent with the actual experience of being sick. This phenomenological legal perspective contrasts with other organizing principles that have a more formalistic orientation. Therapeutic jurisprudence invites us to think instrumentally and empirically about the law, rather than in terms of intrinsic rights or a priori principles. (11) But, unlike other behavioral, economic, or social science perspectives, which consider multiple versions of social welfare or individual utility, therapeutic jurisprudence examines how law affects the therapeutic goals of a treatment relationship. (12) This approach is behaviorally, socially, and empirically complex and sophisticated. Therapeutic jurisprudence focuses specifically on the actual experience of being ill and seeking care, rather than assuming the patient is a prototypically healthy and competent adult engaged in a fairly generic transaction or relationship.
So far, work in the therapeutic jurisprudence vein has been concentrated in the field of mental health law, focusing on issues such as confidentiality, refusal of treatment, competency determinations, and commitment proceedings. (13) Even when therapeutic jurisprudence has expanded beyond this field, it has still continued to focus on the mental health consequences of the law in other fields, such as criminal or family law, or dispute resolution. (14) As a result, the tenets of therapeutic jurisprudence have not been applied to most of the major issues in health care law.
It is obvious that law has therapeutic consequences meriting study when, for instance, it affects the behavior of physicians or the availability of treatment. Beyond these fairly prosaic applications, the notion of law as a therapeutic agent can advance the understanding of how law might affect the more subtle and subjective aspects of medical care that are revealed, for example, in the powerful placebo effect or the growing popularity of alternative medicine. Applied in a more thoroughgoing fashion, therapeutic jurisprudence analyzes health care law from a phenomenological perspective, focusing on patients' actual experiences in their relationships with physicians and other care providers, hospitals and other facilities, insurers and health plans, and various government agencies. Relationships among and within these components of the health care delivery system (doctor to hospital, hospital to insurer, government to profession, etc.) also can be viewed from a therapeutic perspective by considering how these internal or overarching relationships affect patients' experiences in the delivery of care.
The effects of law on care delivery can be studied in both an immediate and mechanistic fashion and in a more psychologically and socially complex way. The straightforward applications of therapeutic jurisprudence ask whether regulatory, market, or liability rules embody scientifically accurate or socially optimal medical practices. The more complex inquiries ask how law shapes behavior and affects outcomes through less obvious or direct mechanisms. For instance, this Article examines how law influences the social and psychological dimensions of personal relationships and institutional structures in medicine. This approach is in line with the burgeoning academic interest in expressive theories of the law, the interaction of law and social norms, and the "new Chicago school" of socio-behavioral law and economics. (15)
The focus on therapeutic goals may strike some as unjustified or too parochial, (16) and in fact other proponents of therapeutic jurisprudence have disclaimed any consequentialist normative agenda. (17) This agnosticism may be appropriate in other areas of law, such as criminal or family law, which are driven by different sets of concerns. However, therapeutic goals should be primary considerations in a body of law that arises from and governs a common enterprise whose central objective is individual health and well being. Certainly, the same point might be made about any field of law defined by a common enterprise, such as banking law or education law, but the point has even greater force in light of the intrinsic and universal importance of health.
C. A Focus on Trust
It would consume many pages even to sketch a general account of such a theoretically and empirically ambitious approach to health care law. Rather than undertake such an endeavor, I present here a particular application of a therapeutic approach, one that systematically examines the psychology of trust in medical relationships. One could look at satisfaction, communication, or other personal and subjective features of treatment relationships, or one could examine various, more objective aspects of treatment such as length or number of visits, adherence to physicians' recommendations, or the effectiveness of treatment measured through quantifiable and observable outcomes. I focus on trust because it has been comparatively neglected both in law and in the broader study of health care delivery, and because the psychology of trust has such a pervasive influence on all other dimensions of medical relationships.
Discussions of trust and related concepts were commonplace in medical ethics prior to the 1970s, (18) when medical law was still in its infancy and medical ethics was focused on issues of professionalism. With the rise of patient-centered bioethics, however, the core value of preserving trust was replaced with heightened attention to physicians' lack of trustworthiness. (19)As explained by one physician ethicist:
The language of rights and the language of trust move in opposite directions from one another. The scrupulous insistence on observance of one's rights is an admission that one does not trust those at hand to care properly for one's welfare. This point can be seen in the fact that "rights" are a peculiarly modern moral language, developed for and appropriate to the highly impersonal social relationships that characterize our times, times in which the breakdown of trust is endemic. (20)
Concerns about the special qualities of the doctor-patient relationship became associated with old-guard paternalism and its reactionary resistance to the patient rights movement. Therefore, as medical law entered the modern era, trust fell into disfavor or was reinterpreted in rights-oriented terms. Rather than focusing on the psychological realities of trust, vulnerability and illness, medical law and ethics thus viewed trust in normative terms that questioned whether physicians deserved trust. As health care law further expanded into the economic and corporate realm, concerns about the doctor-patient relationship became more prominent, but health care law lacked any developed vocabulary, analytical framework, or body of empirical information from which to draw in analyzing these problems.
We are now witnessing a robust revival of trust as a topic in discussions of medical ethics and professionalism. Without reinstating old-style paternalism or undoing rights-based reforms, scholars from a range of disciplines and perspectives are attempting to reconcile ethical theory and professional practice with the essential attributes of care-giving relationsips. In this Article, I seek to extend these insights into the legal arena by giving legal and public policy analysts the tools and information they need to begin thinking clearly and constructively about trust.
In Part I, I explain why patients' trust in physicians and medical institutions plays a central role in enhancing medicine's therapeutic value, and I compare this role to the role that trust plays in other social and commercial arenas. Trust is shown to be essential and unavoidable in medical relationships because patients need and want to trust, and without trust medical relationships never form or are entirely dysfunctional. Beyond the mechanics of forming and conducting treatment relationships, trust confers therapeutic benefit by activating nonspecific or self-healing mechanisms or by enhancing the effects of active therapies. Medical trust has this unique instrumental value because of its strong emotional content, which results from the deep vulnerability of illness that gives rise to trust.
Part II introduces three distinct attitudes or stances that law can take toward trust--predicated, supportive, and skeptical--and systematically illustrates and critiques each of these with leading examples from health care law and findings from empirical studies of trust. The predicated stance, illustrated by informed consent and medical malpractice law, uses the existence of trust as a reason for imposing certain duties and punishing violations, often without regard to the impact this has on trust. The supportive stance is illustrated by medical confidentiality and the law of euthanasia. Here, law takes an instrumental approach that attempts to fortify or restore trust in physicians, institutions, and the medical profession, but often without success, and sometimes in a way that is counterproductive. An attitude of distrust is embraced or fostered by other areas of law, principally the regulation of managed care. The Article concludes by reflecting on how the lessons learned from each of these areas of health care law might inform debates over the role and psychology of trust in other legal and social arenas.
I. THE NATURE AND SIGNIFICANCE OF TRUST
A. The Centrality of Trust
Trust is the core, defining characteristic of the doctor-patient relationship--the "glue" that holds the relationship together and makes it possible. (21) Preserving, justifying, and enhancing trust is a prominent objective in health care law and public policy (22) and is the fundamental goal of much of medical ethics. (23) Trust is also important in other arenas such as those involving commercial transactions, but trust plays a much greater role in medicine. Trusting a financial institution or account manager, even with one's life savings, is a much different proposition from trusting a doctor to perform open-heart surgery or correctly diagnose a disabling ailment. People have many options for organizing their financial affairs, and their decisions about how much authority to delegate and to whom are based to a great extent on their appraisal of the competing costs and benefits. Serious illness, in contrast, leaves one with little choice but to see a doctor, and the nature of medical practice permits some, but much less, control over what occurs during treatment. Added to this, the realization that one's life or physical and mental functioning is at risk creates much higher stakes than do financial transactions. These features create conditions of intense vulnerability, which magnify the role that trust plays in medical relationships and put trust on a much more emotional basis. This deeply personal type of trust is paralleled only in fraternal, family, or love relationships.
One might object that this account exaggerates the significance of trust by focusing on extreme, life-threatening conditions or highly invasive procedures, whereas most medical care is for routine or nonurgent conditions that never approach this level of gravity. However, sickness does not have to be life-threatening for it to profoundly affect thinking and functioning. A bad flu bug, a relentless shooting pain, a case of food poisoning, an inconsolable child, or even an unexplained lump or persistent bad cough can have menacing and incapacitating effects to some degree. An exceptional level of trust can be involved simply in taking a prescription drug or allowing oneself to be physically examined. The psychology of trust has no predictable relationship to the objective risks or the state of medical technology. Trust can be both present or absent in large measures for patients with either life-threatening illnesses treated with high-tech medicine, or for patients with only temporary discomfort that is easily cured. Even if trust is extraordinary only in certain types of treatment encounters, these high-stakes situations are the dominant justification for the medical system. Health care law and public policy should have the quintessential features of medicine as their primary focus even if those features account for only a fraction of all treatment encounters.
Considering the fundamental importance of trust, it is remarkable that medical jurisprudence has paid so little attention to how effectively law incorporates the psychological realities of trust. The few existing discussions on the subject are brief and based largely on intuition or assertion. (24) Similarly, discussion of trust in medical literature is in its infancy. Although physicians have long recognized the importance of trust, academic attention waned in recent decades in favor of more objectively measurable attributes of treatment. Also, promoting the importance of trust fell into disfavor with the increasing focus on patient autonomy and patients' rights as governing principles. Advocacy of trust became associated with old-style medical paternalism, which medical ethicists were devoted to correcting. (25)
Several developments have brought trust back into focus. First, increasing skepticism about the suitability of a purely individual rights orientation to medical law and ethics has allowed some questioning of strict autonomy principles, (26) which has allowed longstanding interest in trust to reemerge. Second, there are a number of emerging approaches to normative theory that look to the essence of relationships, rather than to discrete actions or communications within relationships, as the source of legal and moral responsibilities. (27) The attention to trust is consistent with these approaches. Finally, conventional rights advocates have gained a renewed respect for trust issues as a result of the massive movement toward managed care, which has created many well-recognized threats to the integrity of treatment relationships and the trustworthiness of professionals and medical institutions. (28)
As a consequence, the medical and public policy literatures have witnessed an outpouring of interest in and writing about trust in recent years. (29) There is also a growing empirical literature that is beginning to document the actual extent of trust in physicians and medical institutions and its effects on patients' behavior. (30) Moreover, interpersonal and institutional trust have captured the interest of scholars in diverse fields elsewhere in the law, such as corporate and commercial law, family law, and cyberlaw. (31) These conceptual and empirical advances create a strong foundation for thinking about the actual psychological phenomena of trust in a fashion that is much more analytically rigorous and scientifically grounded than was possible before, paving the way for a systematic analysis of how health care law takes account of trust. This analysis also sheds light on how other bodies of law might take account of the pervasive importance of trust in other realms of life.
B. Definitions, Distinctions, and Dimensions of Trust
We begin with a brief conceptual map of trust, which includes critical definitions and distinctions concerning the nature of trust, its components and dimensions, and how it differs from related concepts and attitudes. A precise statement of the operative concepts is especially important for discussions of trust, because it is riddled with a variety of subtle paradoxes and points of confusion.
Numerous definitions of mast have been proposed in both the medical context (32) and more broadly. (33) Although these definitions have important differences, they also share common themes. The majority stress the optimistic acceptance of a vulnerable situation in which the trustor believes the trustee will care for the trustor's interests. I will briefly elaborate on each of the essential components of this definition. First, mast arises from a state of vulnerability or uncertainty, and so the greater the risk one faces, the greater the potential for either mast or distrust. Trust consists of an optimistic attitude towards one's vulnerability, whereas distrust connotes an attitude of wariness or pessimism. Second, mast in this view is necessarily a psychological state and not merely a behavior. Certain behaviors, such as seeking care or submitting to treatment, may indicate the strong likelihood of mast, but they do not constitute mast itself since they might also occur in an attitude of distrust.
Trusting attitudes are directed as much to motivations and intentions as they are to results. (34) Of course, those who mast also hope or expect a good result, but more than this, they believe that the one they mast has their best interests at heart. Trust, in this conception, differs from confidence or reliance, which also entails the calculated prediction of positive results. (35) Trust has an emotional component that assumes the motivations of the trusted one are benevolent and caring. Thus, it is perfectly possible to mast an unskilled but very caring doctor or to distrust one who is supremely competent but aloof.
There are various objects of trust in the medical context. As summarized in the following four-cell matrix, objects of mast can be either people or institutions, and each can be regarded at either individual or system levels. (36) Trust in a known physician is based primarily on personal experience and individual personality, whereas trust in a health plan or in doctors in general is based more on media portrayals and legal or regulatory protections. (37) However, each of these bases can influence an individual's attitude toward any particular object of trust, and some bases for trust come into consideration for all objects of trust--for instance, shared social understandings and role expectations, or symbolic and archetypal elements (e.g., white coat or red/blue cross). (38)
These different objects of trust can interact in important ways. Due to possible halo effects, trust in a hospital or health plan may be influenced by patients' trust in their personal physicians at those institutions. (39) The correlative may also be true--the level of trust in an institution may influence the degree of trust for individuals associated with the institution, especially in newly formed individual relationships. (40) New relationships are similarly influenced by one's trust in the system in general, since, knowing little else about a new doctor or health plan, one is likely to begin the relationship with attitudes that are generic to doctors or health plans. (41) As experience develops, the basis for trust is likely to shift rapidly from system features to knowledge of individual characteristics gained from first-hand experience. Thus, one can visualize a three-tier model in which trust in an individual physician interacts with trust in a specific institution, and both types of trust relate to trust in larger social systems of science, medicine, commerce, or law. (42)
Finally, trust potentially has multiple dimensions, meaning that one might trust a person about some things but not others. (43) From a review of both the medical literature (44) and the trust literature more broadly, (45) the following attributes appear particularly relevant to medical trust: fidelity, competence, honesty, and confidentiality. (46) Through psychometric testing, however, researchers have discovered that medical trust is strongly one-dimensional, whether the object of trust is physicians, health insurers, or the medical profession in general. (47) This stands in contrast to interpersonal and business settings, where trust tends to be more compartmentalized. (48) Medical trust behaves more globally, meaning that most people do not in fact make differential judgments among the four theoretically distinct dimensions of trust.
In statistical terms, questions assessing these separate dimensions of trust are no more strongly correlated with each other than they are with questions measuring other dimensions, but each dimension is strongly correlated with the overall trust scale and with global trust questions. Thus, a physician who displays fidelity or honesty is likely to enhance trust in competence or confidentiality as well, whereas a patient who catches a doctor in a lie is likely to also question these other attributes. This interconnection among separate dimensions means that medical trust has a pervasive quality that makes it distinctly holistic. (49) Patients respond to irreducible aspects of trust that one might call the "soul of trust."
C. Intrinsic and Instrumental Value
Having set forth a conceptual framework for understanding trust, we now explore why trust is important in medical settings. Its importance can be explained in both intrinsic and instrumental terms. At the most intrinsic level, trust is a highly valued attribute of medical relationships without regard to any other consequence. Trust is a defining aspect of strong caregiver relationships, one that gives them fundamental meaning and value. In this regard, medical trust is akin to love or friendship as attributes of marriage or fraternal relationships. Trust not only enables treatment relationships to occur; it is also a product of the relationship and is a primary reason why the relationship is valued as much as, or sometimes more than, any other consequence of the relationship. Even short-term medical relationships can generate strong bonds and intense feelings of intimacy, as noted eloquently by Charles Fried:
The doctor does not minister just to any need, but to health. He helps maintain the very physical integrity which is the concrete substrate of individuality. To be sure, so does a grocer or landlord. But illness wears a special guise: it appears as a critical assault on one's person. The needs to which the doctor ministers usually are implicated in crises going to one's concreteness and individuality, and therefore what one looks for is a kind of ministration which is particularly concrete, personal, individualized. Thus, it is not difficult to see why I claim that a doctor is a friend, though a special purpose friend, the purpose being defined by the special needs of illness and crisis to which he tends. (50)
The intrinsic importance of medical trust is magnified by the profound sense of vulnerability created even by ordinary illness. Illness is "nothing less than an ontological assault." (51) It undermines one's personal identity at a very profound level by attacking the fundamental unity of mind and body. Illness strikes at one of our most fundamental assumptions in everyday life--that we will continue to exist and function much as we have in the past. Serious illness shatters our "primordial sense of invulnerability," (52) and even ordinary sickness causes many of us to regress to a childlike state where our strongest desire is to be cared for. (53)
This state of "wounded humanity," (54) coupled with the power that physicians possess through their vastly superior knowledge and skill to diagnose and treat illness, means that trust is inevitable and unavoidable in treatment relationships. (55) This assertion is not an arrogant claim for physicians' inherent trustworthiness; instead, it recognizes the psychological reality inherent in the vulnerability created by illness and the essential connection between trust and vulnerability. "`Honor thy physician because of the need thou hast of him.' So said Ecclesiasticus to the Hebrews thousands of years ago. And still, today, patients yearn to have confidence in their doctors, to idealize them, to endow them with superhuman powers." (56)
D. The Therapeutic Benefits of Trust
For these same reasons, trust obviously has tremendous instrumental value in medical relationships. Without some minimal level of trust, patients would not seek care, submit to treatment, disclose necessary information, or follow treatment recommendations. (57) Even routine medical care requires a high level of trust in order to expose our bodies and personal histories. Depending on the particular illness and treatment, tremendous levels of trust are often required to give physicians unprecedented access to every part of ourselves, down to our very blood and guts, while we remain prostrate or unconscious.
We expect to open the most private domains of our bodies, minds, and social and family relationships to [our doctor's] probing gaze. Our vices, foibles, and weaknesses will be exposed to a stranger. Even our living and dying will engage her attention and invite her counsel.... .... The features of our trust relationships with professionals are, taken singly, not unique. What is specific to them is the peculiar constellation of urgency, intimacy, unavoidability, unpredictability, and extraordinary vulnerability within which trust must be given. (58)
Trust is also vitally important for therapeutic benefit in less mechanistic ways. There is very strong evidence, reviewed extensively elsewhere, (59) that the effectiveness of care depends on patients' confidence in its efficacy. Trust very likely underlies hidden elements of treatment encounters, elements that result in healing through what might be termed charismatic, spiritual, or emotional means. This is seen, for instance, in the powerful placebo effect, which pervades much of medicine. Researchers and physicians have documented countless examples of mundane and miraculous relief caused by a largely nonscientific or "nonspecific" process of healing. (60)
Those who have studied this nonspecific healing effect conclude that it is fundamental to medicine, both in industrialized societies and in ancient cultures. (61) This is because the effect is connected more to the intervention of the healer than it is to the particular therapeutic agent used. Put another way, the doctor himself is a placebo or a therapeutic agent, regardless of the particular technique used or its independent, biochemical effectiveness, since interaction with a caring and expert practitioner appears to activate dimly understood healing mechanisms that strengthen more active and visible modalities. (62)
It is uncontroversial that trust in a caring physician facilitates healing, but I wish to make a stronger claim: Trust is not merely an adjunct to biochemically active treatment; it is essential for activating the charismatic or emotive dimension of healing that is fundamental to effective treatment relationships. This more expansive view of the subtle therapeutic dimensions of treatment relationships helps to explain the existence of radically different and inconsistent schools of medicine. Each culture and each era has a prevailing theory of medical treatment, many of which have been pure fantasy if not dangerous, yet remarkably few have been proven to be wholly without benefit. Doctors and healers have been universally respected throughout the ages and across every type of society; we can only assume that most of them have offered some form of relief despite the now apparent quackery they once practiced. Indeed, it has often been noted that the history of medicine until this century has been the history of the placebo effect. Now that medicine has a firm scientific foundation, this mystical or charismatic element has been surpassed by technological skill, but it will never be entirely displaced. Instead, the current revival in both popular and scientific interest in alternative or holistic approaches to healing is seen by many as harkening a new epoch or paradigm in medicine. (63)
A patient's confidence and trust in a care provider obviously is central to this charismatic healing power. "The image of omnipotence is an essential component of the healer." (64) Deep-seated trust appears to activate a patient's own, internal healing mechanisms--mechanisms that are still largely undiscovered and unexplained. This is best demonstrated by the fact that the basic structure and the archetypal characteristics of treatment encounters are remarkably similar across all systems of medicine, including Western, Eastern, religious, herbal, and primitive. In each of these belief systems, society recognizes the healing powers of a professional elite (physicians or shamans), who administer personally to the patient with physical...
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