Conscious versus unconscious conflict of interest

A conscious conflict of interest exists when the agent is fully aware of the potential for the receipt of benefits from a third party to bias his or her judgement, and either welcomes the opportunity or seeks means of avoiding it. An unconscious conflict of interest exists when the agent is not aware that he or she is in a position that might impair the agent's judgement as to how best to advance the principal's interests. This can happen either when the agent is not aware that an interested third party has made an effort to bias his impartiality, or when the agent is aware of the effort but nonetheless is confident in her ability to remain objective.

The level of consciousness of the agent may be linked to the characteristics of the efforts that have been made by the ‘interested’ side. The more overt the intentions and motivations of the third party, the less is the likelihood that the primary agent will be unaware of the conflicting nature of his or her interests. For example, in a case of a bribe, the primary agent should be fully aware of the conflict, since the interest of the third party has been made explicit and (usually substantial) benefits have been offered as a reward for cooperation. In other situations, even when interests are not made explicit, the effort that the third party invests may clearly reveal their intent to alter the primary agent's behaviour, and thus the agent is usually aware of the conflict of interest. The cases that are more problematic are those in which there is no explicit suggestion of reward for cooperation, the efforts of the third party are not conceived by the agent as an attempt to influence his or her judgement, and the reward is relatively minor. Under these circumstances, there is a greater likelihood that the primary agent will not be aware of the conflict.

Several common examples from the medical arena may clarify this distinction. A physician in clinical practice who is hired as a part-time employee by a pharmaceutical company to conduct research on the effects of a new drug manufactured by the company, or a clinician who holds stock in a pharmaceutical company that manufactures drugs for disorders that the clinician is likely to encounter, are clearly facing conflicts of interest. In these situations, the significant salary received by the physician or overt prospect of gain make it less likely that the physician would be unaware of the conflictual nature of the situation. In a similar way, a physician who receives a bonus from an insurance company for recommending a cheaper treatment to a patient illustrates another example in which the interest of one party is made explicit, a reward for cooperation is offered, and hence it is more likely that the physician will be aware of the conflict. A common approach suggested for the conscious case of conflict of interest is disclosure of the relationship between the physician and the interested third party, which alerts the principal to the conflict and presumably reduces the risk that the physician will act against the principal's interests. Other techniques for managing the conflict (eg, outside supervision of the physician or terminating the conflictual relationship) may also be enlisted.10

As opposed to these situations, in which the problem of conflict of interest is likely to be recognised and can be addressed, there are cases in which the conflict may be less clear to the agent, because the influence of the interested party is more subtle. One such case discussed extensively in the past few decades, as noted above, pertains to physicians' accepting small gifts and other personal benefits (eg, meals) from drug companies. Many physicians do not see these benefits as a quid pro quo for prescribing the companies' products and deny the possibility that the gifts will influence their behaviour.3 Hence to the extent that concern exists about the impact of these benefits, it focuses on the possibility of unconscious influence on the physician.

It is important to clarify at this point that our usage of the term ‘unconscious influence’ is not in its Freudian meaning, namely a behaviour that drives from consciously inaccessible ‘id’ desires or instincts. We refer to a sense of unconscious more in keeping with its use in the cognitive and social psychology literatures,9 11 in which a person's behaviour may be governed at times by intuitive, automatic cognitive mechanisms that are distinct from fully conscious, controllable or rational thought processes.

Unconscious conflict of interest—is it a real problem?

There is substantial public and professional concern regarding the harmful consequences of physician conduct when it is presumed that conflicts of interest are conscious, for example, when physicians receive substantial amounts of money to give promotional talks on behalf of pharmaceutical companies. Recognising this, many academic medical centres eschew such presentations as likely to be biased and are beginning to restrict faculty involvement in them. However, both the public and the medical profession appear less certain how to deal with relationships in which the influence, if any, is likely to play out at the unconscious level. Hence, the practice of physicians accepting small gifts and meals from drug companies is still very prevalent and among many physicians is considered acceptable.12 The main argument supporting this practice is that small gifts do not significantly influence physician judgement and behaviour. Physicians are quite confident about their cognitive integrity and thus believe that their clinical judgement remains intact even if they accept gifts and other personal benefits.13

Although this assumption appears to be widely accepted among physicians, empirical data have called its validity into question.9 Psychologists, sociologists and economists have shown that moral behaviour is not entirely rational, but rather partially automatic, intuitive and emotional.11 Individuals are not fully conscious of their motives, and may have limited control over behaviour when they act under the influence of unconscious incentives. These empirical data have an important role in the ongoing dispute over the unconscious impact of relationships with third parties, such as pharmaceutical companies, whose interests may not be identical with those of patients; however, it seems unlikely that they will put the dispute to rest. Individual physicians tend to discount the effect on themselves of accepting small benefits, even as they acknowledge that others may be affected. Ultimately, this dispute is to a greater extent over morals and values than over facts and empirical data. The current empirical data on this issue can further convince those who are already convinced, but to the best of our judgement, it is unlikely by itself to be compelling enough to persuade those who genuinely do not see an ethical problem.

In fact, this dispute might be, at its root, more ideological than empirical. The two different opinions are embedded in varying ideologies regarding human psychology on one hand and the definition of virtuous conduct on the other. For example, one can justify the acceptance of gifts given by drug companies on the psychological–epistemological level by arguing that the idea of ‘unconscious’ influence is a mistake. Human behaviour, following this argument, derives from rational decision-making. According to this model, the ‘unconscious’ simply does not exist. In contrast, those who express concern about the effect of gifts are more likely to accept unconscious determinants of behaviour.

Second, on the moral level, one can justify the practice of accepting gifts from drug companies even if one admits that there is indeed a chance of unconscious influence. The harm that might be caused by unconscious influences is minimal, the argument goes, because the acceptance of gifts does not necessarily negate virtuous conduct.14 Indeed, the information provided to physicians by pharmaceutical companies will, on balance, improve their decision-making, thus leading to an overall positive outcome—the promotion of public health. Since small benefits are facilitators of these relationships (eg, provision of lunch to busy physicians encourages them to take time to learn about the latest products from a pharmaceutical company representative), it would be unwise to prohibit such practices. Hence, a policy that prevents physicians from accepting gifts would be counterproductive. This is arguably an example in which the interests of physicians and patients converge, as reflected in the classical capitalistic economic model of Adam Smith, according to which: ‘It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.’15 Opponents of gift-giving may have less optimistic views about the durability of virtue in the face of temptation.

Since we suggest that the dispute regarding unconscious conflict of interest is a psychological–philosophical one in essence, not limited to the medical arena and not circumscribed to our times, it may be illuminating to expand the borders of this dispute to a wider cultural and temporal frame. In the following section, we present a few brief excerpts from traditional texts of Jewish law that illuminate the issue of unconscious conflict of interest.

The prohibition of taking a bribei

In Exodus 23:8, the children of Israel are commanded: ‘And thou shalt take no bribe; for a bribe blinds the eyes of the wise, and perverts the words of the righteous.’ From the biblical context, one can infer that this prohibition refers to judges and indeed, in Deuteronomy 16:18–20 this ban is mentioned once again, this time with a specific reference to judges: ‘Judges and officers shalt thou make thee in all thy gates … and they shall judge the people with righteous judgement: Thou shalt not wrest judgement; thou shalt not respect persons; neither shalt thou take a bribe; for a bribe both blinds the eyes of the wise, and perverts the words of the righteous: Justice, justice shalt thou pursue … ’ The Babylonian Talmud (Tractate Kethuboth, folio 105b), the main Jewish legal text (200–500 CE), further elaborates the specific rules and conduct that constitutes taking a gift meant to influence behaviour, that is, a bribe (shochad, in Hebrew). The full Talmudic discussion is beyond the limits of our paper, and we focus only on those parts of the text that are relevant to unconscious conflict of interest.

First, the scholars of the Talmud paid special attention to the literal description in the Bible, according to which a gift makes the wise person blind, as follows:

Our Rabbis taught: ‘For a gift blinds the eyes of the wise’ and much more so those of the foolish; ‘and perverts the words of the righteous’ and much more so those of the wicked.

Are then fools and wicked men fit of acting as judges?—But it is this that is meant: ‘For a gift blinds the eyes of the wise,’ even a great Sage who takes bribes will not depart from the world without [the affliction of] a dullness of the mind; ‘and perverts the words of the righteous,’ even one who is righteous in every respect and takes bribes will not depart from this world without [the affliction of] confusion of mind.

According to the Talmud, it is not only a foolish judge who is susceptible to losing his or her impartiality when accepting a gift—even ‘a great sage’ cannot escape its deleterious influence. There is no immunity against the powerful negative influence of a gift. But why is that? What is the psychological explanation for this unavoidable influence?

Raba (the name of a scholar) stated: What is the reason for [the prohibition against taking] a gift? Because as soon as a man receives a gift from another he becomes so well disposed towards him that [the other person] becomes like his own person, and no man sees himself in the wrong. What [is the meaning of] shochad? She-hu chad. [See explanation below]

The impact of gift acceptance transcends its monetary value. As human beings, the gift in our culture signifies closeness. After receiving a gift the person who gave the gift and the person who received it are, in some sense, united. Based on the assumption of the Talmud that a person is not capable of being fully aware of his own limitations, from the moment the judge receives a gift he unconsciously becomes closer to the giver. This closeness inevitably compromises his impartiality. According to the Talmud, even the etymology of the Hebrew word for a gift of this sort—shochad—implies something about the reason for the prohibition. The Hebrew (also the Babylonian, as well as the Arabic) word for ‘one’—chad is hidden in the word shochad (a gift intended to influence behaviour) so as to reveal the unconscious union between the giver and the receiver as the basis for prohibiting the acceptance of gifts.

Thus far, we have addressed the first question, namely, can accepting a gift unconsciously impair a person's ability to render a fair judgement. According to the Talmud, even the conduct of a wise person, a distinguished judge, is not based solely on logic and rationality. Even a sage might be under the influence of more powerful, unconscious psychological forces. As Rashi (1040–1105), one of the best-known commentators on the Talmud, explains, after a judge receives a gift he is unconsciously reluctant to charge the giver because he and the giver ‘become one heart’, even if the judge has the intention to explore the truth.16

Going even further, the Talmud suggests that, due to the unconscious mechanism of influence between the giver and the receiver, the prohibition of receiving a gift is not limited to physical gifts, but extends to any other personal benefits, including ‘a bribe of words’:

Our Rabbis taught: ‘And thou shalt take no gift’; there was no need to speak of [the prohibition of] a gift of money, but [this was meant:] Even a bribe of words is also forbidden, for Scripture does not write, ‘And thou shalt take no gain.’ What is to be understood by ‘a bribe of words’?—As the bribe offered to Samuel (a Talmudic scholar who served as a judge). He was once crossing [a river] on a ferry when a man came up and offered him his hand. ‘What,’ [Samuel] asked him, ‘is your business here?’— ‘I have a lawsuit,’ the other replied. ‘I,’ came the reply, ‘am disqualified from acting for you [ie, as a judge] in the suit.’

In a meticulous reading of the story mentioned above, it is not clear whether Samuel, the Talmudic scholar, actually accepted assistance from that ‘courteous’ man. In fact, his reaction of disqualifying himself from serving as a judge seems to be related solely to the man's offer. That man's gesture—offering his arm—was a sufficient cause for the disqualification. The gesture alone was perceived by Samuel as a sort of speech-act that emanated—perhaps unconsciously—from the man's desire to influence his judgement. In other words, the offering of the arm was ‘a bribe of words’.

The Talmud mentions several similar cases in which a scholar disqualifies himself from serving as a judge when he finds that one of the parties had taken an action on his behalf. By mentioning these cases, the Talmud implicitly addresses our second question—Is the unconscious psychological influence of receiving a gift so powerful that there is no other way to approach this problem of conflict of interest besides withdrawal? Why isn't the solution of disclosure enough? It seems that the Talmudic answer to this question is clear. On the psychological level, one cannot escape the deleterious unconscious effects of receiving a gift. As a human being, the recipient is biased, no matter how wise and otherwise reasonable the person may be. On the moral level, either as an obligatory legal standard (according to the 12th century philosopher and physician Maimonides17) or as part of the pursuit of virtuous conduct (according to the Tosafists,18 a group of medieval commentators on the Talmud), the best way to deal with conflicts of interest is to avoid them entirely.

Although the Talmudic discussion is confined to judges, some rabbinical authorities extended the practical ramifications of this discussion to include other arenas as well, such as those in public office and community activists.19 Can one extend this recommended code of behaviour even further and apply it directly to the relationship between pharmaceutical companies and physicians? Certainly, this inference may not be obvious. There are several differences between the social roles of judges and physicians that complicate the comparison between the institutions of justice and medicine, including the importance of perceptions of fairness regarding the public system of justice. Indeed, the practical implications of this Talmudic discussion are mainly of relevance to the observant Jewish community that commits itself to following the rulings of rabbinic authorities. Nevertheless, we suggest that on a more conceptual–philosophical level, it is legitimate to extract from these texts an implicit universal notion pertaining to human judgement and decision-making capacity, including the case of unconscious conflict of interest in medicine in particular. One may think that this problem is a modern dilemma because it relates to the modern structure of medicine, the role of the drug industry, etc. Actually, the problem of unconscious conflict of interest, as we have shown, has been evident for nearly 2000 years.20 In fact, this moral problem is an issue of human nature and human decision-making in general—not specifically with regard to pharmaceutical companies or physicians.

Indeed, the inherent inclination towards reciprocity between receivers of gifts and their contributors that is reflected in the Talmudic discussion probably goes beyond mere psychological feelings. The French sociologist Marcel Mauss argued that although gifts are supposed to be given voluntarily with no expectation for a reciprocal act, they actually function as a powerful social tool that obligates the recipient to return the favour,21 or as Mary Douglas put it, there are ‘no free gifts’.21 Social forces thus may reinforce psychological processes.

For those disinclined to accept either the insights of sociologists and anthropologists or the findings of modern neuroscience9 11 on the tendency towards reciprocity in response to the receipt of gifts and favours, perhaps the wisdom of the ancients provides a reason to rethink the unconscious influence of even small benefits on physician behaviour.