Responsibility and Surgical Innovation: Locating Ethics in Responsive Regulation.
Professor Colin ThomsonUniversity of Wollongong
The issue
All the great surgeons of our time and of generations gone by have been quintessential innovators, trailblazers who have sought to make meaningful differences in how we practice, teach, do research, and administrate. Surgeons are known for taking initiative, being decisive, and leading the way for others to follow; innovation, therefore, is very much part of the surgical phenotype.
(Anees, 2011:642)
The issue:
Ethical regulation of surgical innovation: the “last frontier” ?(Reitsma & Moreno 2001)
When is an innovation a variation of current practice something new or research?
The context: innovation in surgery
haemorrhagic occluder pin
Clinical practice: traditional and laparoscopic appendectomy
Ligation of the internal mammary artery
Failed innovations
The DePuy ASR hip replacement
At least 50 hip replacement products availableAt least 20 competitors in $2billion global industry
The ASR hip replacement
2003 European device authority approval
2005 Published concerns about toxicity of metal debris from metal-on-metal hip
replacements.
2006 DePuy paper “Setting the record straight on metal hypersensitivity”
2006 UK agency considers toxicity & appoints expert panel to advise on risk-benefits of metal-on-metal hip replacements
The ASR hip replacement2007 Fractures & joint/tissue erosion
Australian National Joint Register notifies DePuy annual revision 5xnormal
DePuy explains data away
2008 Reports of high metal ion in blood 100 x normal
2009 DePuy withdraws ASR in Australia
2010 DePuy withdraws ASR world wide
93,000 ASR replacements
predicted 49% failure in 5 years
Regulatory challenge
How promote innovation AND Minimize & manage risks to patients? Can responsive or smart regulation
assist in resolving the regulatory dilemma?
What is regulation?
the intentional activity of attempting to control, order or influence the
behavior of others.(Black)
Smart regulation*: Principle 1
Prefer policy mixes incorporating instrument and institutional combinations
• Gunningham& Sinclair
Smart regulation: Principle 2
Prefer less interventionist measures
Intervention = Prescription - inflexible & inefficient Coercion – ineffective (conscripts)BUT less interventionist measure must
workCapacity to elevate response
Smart regulation: Principle 3 (incl. responsive regulation)
Escalate up an instrument pyramid to the extent necessary to achieve policy goals
Responsive regulation
Smart regulation varies this by:• including non- government agents
as quasi-regulators• escalating, in event if failure, in multiple ways• triggers: inspection, audits,reporting,etc• buffer zones• circuit breakers
Smart regulation: Principle 4
Empower participants which are in the best position to act as surrogate regulators
More potent More legitimate Government resources limited Governments not omnipotent – but
may be important facilitator via $, or mandating information to insurers
Smart regulation: Principle 5
Maximise opportunities for win/win outcomes
Regulation achieves safety & enables surgeon benefit/incentive?
Professional recognition for notification/auditing of innovations?
Access to intellectual property profits only if safety standards met?
Objectives of regulation
Responsive & smart regulation devised to regulate industry to prevent environmental harm
Objective=risk management Regulating innovation in surgery needs
to: minimize & manage risks to patientsBUT ALSO promote innovation
Could ethics be an element of smart regulation?
(Can ethics be smart?)
Ethics in regulation
What role does or should ethics play in smart or responsive regulation of surgical innovation?
Is innovation consistent with surgical professional ethics?
Is innovation consistent with ethical obligations to patients?
Is ethical self-regulation individual or professional?
Ethics in regulation
Would any such role impair the function of professional ethics as a source of responsibility?
E.g. if ethics becomes associated with (mere) conformity on reporting & auditing of innovation?
Re-examining ethical conduct
What motivates ethical conduct?* Autonomy Mastery Purpose*(Drive, Dan Pink)
Acknowledgement