The practice of physicians is generally expected to be based on the best empirical evidence available, an expectation supplemented by the ethical requirement that their diagnoses, and certificates based on them, are not purposely false or misleading. Indeed, physicians have most likely achieved their authority and professional sovereignty by means of their professional and scientific ideals.1 This is also likely to be the reason why they have been entrusted by society with determining, for instance, whether or not people should be classified as eligible for sick pay or early retirement due to health reasons, be in a position to buy life insurance, or be considered mentally capable of being responsible for criminal acts.

However, physicians’ loyalties lie, not only with society and their own profession, but also with their patients. In some cases where society’s interests conflict with the interests of a single patient, or where an act in the interest of a patient might compromise the reputation of the medical profession, physicians’ loyalties are put on trial.2 3 In a previous study a considerable proportion of general practitioners and psychiatrists expressed support for actions involving more or less faked diagnoses and certificates in order to help patients in distress. The results indicate that physicians are prepared, under certain circumstances, to make diagnoses that are not strictly in accordance with good clinical practice and common ethical expectations, their main reasons being that (1) the patient’s best interest is considered and (2) it is a convenient way to help.4

This paper analyses whether, and if so on what conditions, fake diagnoses and false or misleading certificates are acceptable means of helping patients. This is done in relation to four Swedish examples of how physicians have misled authorities or relatives in order to help their patients: the sterilisation case, the asylum case, the virginity case, and the adoption case. We first present the cases together with some ethical reflections concerning each case. Thereafter we take these reflections as input for a more general discussion.

THE STERILISATION CASE

Family planning as a reason for sterilisation was not legally accepted in Sweden until 1975, when the law on sterilisation and abortion was liberalised. In the 1940s, 1950s, and 1960s several Swedish physicians nevertheless helped patients who requested sterilisation for such reasons.5 6 For sterilisations before 1975, three aspects were considered relevant: (1) eugenic reasons, (2) social reasons, and (3) medical reasons. A certificate from a physician was needed before permission could be granted by medical authorities. Not all kinds of social and medical reasons were considered sufficient to grant such permission. Both family planning and the financial situation of the family were insufficient as social reasons, as was general weakness due to several previous pregnancies as a medical reason. Some eugenic reason would make the argument for permitting sterilisation much stronger when social and medical reasons were considered insufficient.5 This was not unique to Sweden—similar conditions applied in all the Nordic countries at the time.7 8

During the period 1942–50 especially, the eugenic reason sufficed to make responsible Swedish authorities grant the request.5 9 Various forms of socially deviant behaviour in the (extended) family, such as alcoholism, would pass as eugenic reasons since much human behaviour was regarded as genetically based. It has been assumed that more than half of all the female patients who were sterilised 1942–50 were sterilised for family planning reasons only—on average 95% of the sterilisation patients were females, approximately 31 000 women during that period.5

Reflections

The importance of sterilisation as a means of avoiding unwanted pregnancies can perhaps be questioned. However, it has helped “worn-out” women and large families considerably without harming society or general confidence in physicians. With hindsight, one may regret the frequent use of eugenic arguments, even though these were used merely as a means to an end. Clearly, physicians have given pragmatic considerations precedence over more principled considerations.

THE ASYLUM CASE

Strict requirements apply in order for a person to be eligible for asylum in Sweden. To increase their clients’ chances, lawyers helping refugees to get asylum have asked physicians, psychiatrists especially, to write certificates in favour of their clients. Although most of these certificates seem to have been honest and based on the evidence at hand, some physicians have exaggerated the patients’ illness, as well as their anticipated difficulties in obtaining proper treatment if deported. When these certificates first appeared, they were treated by the authorities as an important ground for granting asylum. However, inspired by the early success, acquisition of such certificates soon became general practice. Although the contents of the certificates and the descriptions of the severity of health conditions varied, these certificates gradually lost much of their earlier importance since the authorities no longer gave them as much weight in their considerations.10 Asylum cases have also been considerably prolonged by additional certificates when the process has not led to permission to stay.11 By acquiring new certificates refugees have been able to postpone their deportation by keeping their cases alive, but for many the extended asylum process has been very distressful and for some it has been detrimental to their health.

Reflections

This is a case where the widespread practice of writing certificates has eroded their usefulness, although there are no indications that the general trust in certificates has been affected. There are several possible explanations for this development, one being that when these certificates became frequent it also became clear to the authorities that physicians took a more pessimistic view than they did of the chances of refugees getting proper treatment in their native countries. This difference in judgment is not necessarily mainly due to exaggerated statements by physicians regarding the illness of their patients or their anticipated difficulties in obtaining proper treatment if deported. There may be different perceptions of the actual situation, for instance due to different sources of information. However, previous research shows that physicians have a pragmatic attitude, in theory, concerning asylum cases. Physicians find a “flexible” way of helping patients especially important when their health is seriously endangered.4

THE VIRGINITY CASE

In some cultures the virginity of a woman who is about to get married is of great importance.12^–14 Sometimes relatives want a certificate from a physician to prove that she is indeed still a virgin—such certificates are currently used in some patients’ native countries. This occasionally puts physicians in a situation where a young woman or her family asks them to provide a false virginity certificate or even to perform surgical reconstructions.14^–16 Swedish physicians sometimes write such certificates or perform such operations in order to help women in distress. A certificate might for instance state that “Miss X has been professionally examined. Nothing in this examination indicates that she is not still a virgin.” while the examination consists in irrelevant measures. Such a certificate might save the woman concerned from a difficult situation.

Reflections

Before deciding what to do physicians need to be clear about the situation that these young women are in: Are they threatened? If they are, is writing a misleading certificate the proper way to deal with the problem? In Sweden, physicians are legally obliged to report threats of violence to the social welfare authorities. If a woman asking for such a certificate really is severely threatened by relatives or others, then she might need police protection. Does the situation justify the physician not involving social welfare authorities or the police? Do the police or the social welfare authorities actually have the capacity to protect the woman? Might a report be counterproductive if the relatives are accused of threatening her? Although a virginity certificate can hardly be a long-term solution to the problems these women face, it might be a pragmatic emergency solution.

THE ADOPTION CASE

In order to be eligible for adoption, potential parents need to be medically approved by the authorities in the country from which the child is adopted. Certain health impairments (different ones in different countries) disqualify for adoption. The health requirements are construed from the perspective of how serious these impairments are in the country where the child comes from.17 For instance, asthma and diabetes disqualify people from adopting in some countries, even though most asthmatics and diabetics have high life expectancy, given adequate treatment. Medical health certificates clarifying this, and showing that they do get such treatment in Sweden, are quite common. However, sometimes Swedish physicians, when issuing health certificates, instead either withhold information concerning disqualifying diseases or purposely exclude some of them from the examination in order to help those who are waiting to adopt.

Reflections

If physicians withhold information about health impairments of potential parents in health certificates, this might deceive the authorities in the “sender” country into believing that potential parents are healthy enough when in fact they are not.18 However, if physicians are explicit about all known health impairments, this might disqualify some couples even though the impairments would not prevent them from taking good care of a child. Thus, in some cases not withholding any information in this communication might be more misleading than withholding some information. “Misleading” certificates may therefore actually not be as misleading as a complete and truthful certificate.

SIMILARITIES AND DIFFERENCES

In all the cases presented, the presumed interests of society have occasionally been overridden by concern for the patients. However, the purpose of using misleading diagnoses and certificates varies. Sometimes they are produced with the patient’s health in mind. On other occasions other considerations dominate, such as the family situation.

The outcomes have also varied considerably. In the asylum case, certificates from psychiatrists have become of little use, making the situation worse for those who clearly need psychiatric treatment and for whom such treatment is not available in their native country. The false statements in the sterilisation example never had the corresponding effects. The same goes for the virginity case and the adoption case so far.

What would explain the differences in outcomes in the asylum case and the sterilisation case? One reason why a practice of misleading behaviour disrespecting legal regulations might erode is that it becomes so common that it reveals itself to the responsible authorities. This was arguably the case concerning the certificates for asylum-seekers. The proportion of such behaviour in relation to the total number of decisions taken might be one factor affecting how easily it is detected.

False sterilisation certificates were not as common in relation to the total number of applications. On the other hand, they were produced for such a long time that it is reasonable to think that they would have been discovered by the authorities if they had made the effort. If ease of detection is one factor determining the success of physicians’ misleading behaviour, willingness and pressure to detect is probably another factor. In its absence, the misleading behaviour will be much easier to maintain. One important difference between the two cases is that the physicians’ certificates were clearly sailing against the political wind in the asylum case, while they were well in line with the political trend in the sterilisation case.

JUSTIFIED BEHAVIOUR?

Are practices of making fake diagnoses and producing false or misleading certificates morally acceptable? This is a complex question unless an absolutist attitude, allowing no exceptions, is taken on ethical principles. However, absolutist approaches have no way of solving conflicts between different principles and so have overwhelming problems of their own. For any other ethical approach, the solution, one way or another, involves balancing different principles or interests when they come into conflict.

In the cases we have presented there are, at least, aspects of health, wellbeing, truthfulness, autonomy and personal integrity, trust in the medical profession, and compliance with national legislation to consider. For instance, it could be that some principle of benevolence or respect for autonomy and personal integrity takes precedence over the principle of truthfulness or law-abidingness in a particular situation. Thus, if the wellbeing of those demanding sterilisation was considerably improved by their getting it, this might have been more important to consider than truthfulness about their eligibility for sterilisation. Similarly, showing respect for the autonomy and personal integrity of the women under pressure of virginity control might be more important than considerations of truthfulness and the wellbeing or preference satisfaction of the control-interested relatives.

Consequentialist theories focus on the outcome in one or several dimensions, such as wellbeing or accomplishments. Whether or not a certain action abides by principles such as “do not lie” only matters to the extent that this affects the overall outcome. From a consequentialist perspective, whether or not physicians should fake diagnoses to help their patients depends on what overall consequences such behaviour will have, including the effects on general confidence in physicians. The overall effects of one’s actions can often be genuinely difficult to foresee, as critics of consequentialist theories are keen to point out.19 20

Principle-based ethical theories do lend weight to truthfulness as such rather than to its consequences.19^–23 However, the outcome of a practice, such as that of writing misleading certificates, can also be relevant to principle-based ethical theories that balance, for instance, concern for truth-telling and law-abidance against considerations of benevolence or personal integrity.

Even a Kantian approach to ethics arguably relies on consequences, in the following sense. The reason why a rational agent, according to Kant, cannot will that certain action-guiding principles be followed universally is that this would undermine the very social practices that the principles presuppose. Thus, if they were universally followed, they could not be universally followed, which involves a practical contradiction. For instance, if the maxim “make a false promise whenever it is convenient” were to be treated as a universal law, that would undermine the very practice of promise-making, since no one would have any reason to believe the promise-makers.21 23 24 Analogously, practices of writing misleading certificates might undermine the social practice of using certificates. In order for misleading certificates to be of any use, there has to be a social practice of writing correct ones, but if the maxim “write a misleading certificate whenever that is convenient for the person who wants it” were to be universally followed, then certificates would no longer be trusted and the practice would perish—thus the maxim would undermine itself; therefore it cannot be willed by rational agents.

It should be noted that if the rational agent is mistaken about the undermining effect, then he or she is also mistaken about the ethical status of the action on this account. Arguably some deviations from a general practice of truth-telling, such as sometimes using white lies or false certificates in the best interests of others, will not have that undermining effect and can therefore be acceptable on this ground.i Deontologists can still argue that such acts are intrinsically bad, yet they are much more acceptable than they would be if they also had the undermining effect. They might therefore be justified if other duties relevant to the situation motivate such behaviour. In an ideal world such situations might not occur, but in our less than perfect world they might.21

DECEPTIVE BEHAVIOUR

It might be argued that for any truly deontological approach, deception cannot be justified in terms of its positive effects on people’s wellbeing. However, we do not presuppose that it can. Truthfulness is not the only duty, even aside from promotion of wellbeing; respecting and protecting patients’ autonomy and personal integrity, circumventing irrelevant obstacles to their free choice, and trying to help them to relative safety are arguably other duties that physicians need to consider, duties highly relevant to the cases we discuss.

Besides, it is by no means clear that all our four cases always involve deception. If someone purposely tries to mislead, then that is certainly an instance of deception. This seems to apply in the sterilisation case: doctors helped patients to be regarded as eligible for sterilisation even though they did not fulfil the requirements. In the asylum case it is less clear that the purpose of the certificates is to mislead; in some cases it probably is, in others probably not. In the adoption case it has probably very seldom been the intention of physicians to deceive foreign adoption authorities, but rather to give them a correct impression of the applicant couples’ expected capacity to take care of a child, by leaving out information that might otherwise lead them to draw incorrect conclusions. This case thus supports the view that truthfulness, and honesty, does not require total openness.23

Regarding the virginity case there is reason to believe that circumstances vary. Whenever the woman’s family, or the family of her future husband, really want the truth, then writing a virginity certificate without a proper examination of the woman is indeed an act of deception. But there are other reasons for demanding a certificate besides that of establishing the truth. In some cultures where there is a long tradition of inquiring about the virginity of the bride, this has survived into the modern age as a purely formal social convention dealt with by providing a certificate from a physician. Here the very certificate is the point, rather than what it states. Whenever this is the case, it can be questioned whether writing such a certificate involves deception: the intention is not to deceive but to help the family act according to social conventions; nor is anyone deceived, since the content of the certificate is not seriously regarded.

RESPONSIBILITY OF THE PATIENT

The role of the patient and relatives of the patient must also be considered. If they require a false or misleading certificate from a physician, then they are doing something wrong if it would be wrong of the physician to grant their request. To the extent that it is wrong to fake diagnoses and write misleading certificates, the duty of avoiding them is shared by the physician and the patient or relatives concerned (if the patient does not want it but his or her relatives insist, then the responsibility is, of course, mainly theirs). If it is wrong, then it might even be detrimental to the patient’s or the relatives’ self-esteem in the long run for the physician to adhere to their wishes.

We conclude that whether or not a fake diagnosis or false or misleading certificate is ethically acceptable, or even required, in a particular situation is a complex issue to settle since it depends on many aspects, such as the following:

• Is it a case of deception?

• Is it disrespectful to the law, patients, or others?

• What are the direct effects of the behaviour?

• What are the indirect effects? (Is it counterproductive in the long run? Does it erode patients’ and/or authorities’ confidence in physicians? Is it detrimental to the patient’s or other people’s self-esteem?)

• What are the alternatives? (Is acting in a misleading way a necessary means to help the patient? What is its status compared to other means, and what are the relative probabilities of success, depending on what alternative is chosen?)

Since the assessment partly concerns consequences, it might very well be the case that it cannot be established at the time when a decision has to be made whether or not faking a diagnosis or writing a false or misleading certificate is the right thing to do.

CONCLUSIONS

It can be justifiable for physicians to fake diagnoses or present false or misleading certificates in order to help their patients when not doing so is expected to have dire consequences in terms, for instance, of wellbeing, autonomy, or personal integrity. It is important, however, that physicians also consider the long-term effects of making exceptions to honest, non-deceitful behaviour based on the best empirical evidence available, since those exceptions might erode valuable practices as well as public confidence in physicians.