Are professional bodies legally able to limit what their members do professionally, o

[Chanakya]

This is from another thread, where continuing this discussion would obviously have been off-topic. This thread's for that broader discussion, that I’ve quoted below from my post there and boldfaced:

I feel stupid posting this, because I’m sure I just missed the link, but the AMA does explain its position on executions:

https://code-medical-ethics.ama-assn.org/ethics-opinions/capital-punishment

Eta: they also lay out their position on Torture, which is nice:

https://code-medical-ethics.ama-assn.org/ethics-opinions/torture

That makes their position crystal clear, thanks for posting.

(Well, not the details of it. Doesn't stipulate that doing this will cost a doctor his licence. But that might well follow, given these very clear guidelines.)


Interesting that the ethical concerns of a professional body is allowed to go against direct legal mandate. Wonder if this has ever actually been challenged in a court of law.


I like their stand on torture, clearly calling it out as vile and barbaric. Wish they'd done the same for executions as well. ...Still, what they do have, in terms of clear guidelines , is admirable.

This larger discussion will probably be off-topic --- and maybe I'll start a thread, later when I'm free --- but I wonder what other professions have this kind of extra-legal ethical angle, and what exactly the legal standing of this sort of thing is.

I mean, these are four different things. One, some doctor personally deciding he won't involve himself in taking life. Two, an association putting out general guidelines like these, just non-enforceable guidelines. Three, enforcing those guidelines on pain of revoking membership, when the membership mainly means dinners, dances, networking, and informal recognition. And four, enforcing them by taking away the man's licence, and his right to practice his profession. Four very different things. And the last particularly, I do wonder if it might hold up in a court of law.

I suppose an equivalent would be the confessional thing. Regardless of my opinion on the specifics --- which is that medicine is a bona fide profession with real ethics, while priesting away is nonsensical cosplay and charlatanry and exactly the opposite of ethical --- but regardless, again, it's one thing for a priest to take his vows seriously and not divulge details about somone who's confessed to a crime to the police, and a very different thing for the church to forbid him to do that on pain of defrocking him and losing his career. (Although does the church only licence priests, or are they more like employees? If the latter, then that might be a separate, fifth, category.)

 

[Chanakya]

It doesn’t go against a legal mandate. There is no legal mandate that doctors must participate in executions. It is legal for them to do so, but it is not mandated.

Many professional organizations have ethical standards that are more limiting than legal standards that apply to non-professionals. That is one of the main rationales for professional organizations.

You’re right, I may have worded that ambiguously, imprecisely.

Yes, these executions are legal. Therefore, and as far as the law, doctors are being stopped from doing something that is completely legal, and this is not about some technical standard but simply about ethics.

But it goes beyond that. It isn’t simply that executions are legal (as, for instance, euthanasia may be legal in those places where the law allows it), but it is actually mandated in each specific instance by the courts of law, and that sentence of the courts actually carried out by the state. So in that sense, while obviously neither specific doctors nor even doctors in general have been mandated with carrying out the execution, or with assisting in it, but the execution itself is a legal mandate, of course it is, each and every specific execution is.

And like I said, it’s one thing for an individual doctor to elect not to do this basis his own personal ethics. But here we have a situation where the association is preventing a citizen from doing something in his professional capacity, that is not a matter of technical standards but of ethics. The association is preventing the doctor/s from doing something not only legal but actually legally mandated.

I don’t know, if I were a doctor, and if I’d elected to go ahead and assist some execution/s, and if I were debarred as a result, then I imagine (maybe wrongly, not a lawyer) that I’d have grounds not only to challenge that disbarment, but actually to claim sizeable damages.

Has such a case ever been filed? That would be interesting, if such a thing has ever happened.

[To be clear, I personally think capital punishment is a barbaric anachronism, that has no place in civilized society. I was just wondering about the legality of this kind of thing.]


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Are there other professional associations that similarly restrict their members? I can’t think of any, other than maybe the RCC, the whole confessional business.

If a medical association’s guidelines state that a doctor shouldn’t turn away a patient that he might be able to treat, simply because of the money angle, then that’s different, because while that also goes beyond the law, but that’s different, because it doesn’t cross or hinder any legal mandate. Like I said, I can’t think of any other instance, other than maybe RCC priest sitting behind the curtain, and holding back info that might assist the police with detecting or preventing crime.

Sure, I may be mistaken. That’s why I thought to start this thread, to look at those other instances that you say there are, and also to discuss if this kind of guidelines-at-the-point-of-a-gun from associations might actually hold in a court of law.

 

[theprestige]

It's called freedom of association, and it's a fundamental human right.

You may find it ethical to performing executions on behalf of the state, but I don't. If you choose to do those things, I will no longer associate with you, nor will I allow you to associate yourself with me. You are free to choose which of those two things is more valuable to you: Performing executions, or my association.

Part of what makes my association so valuable is the strict standards to which I hold my associates. Not only do we prohibit many legal things that we feel do not reflect well on our members, but we also impose many additional requirements and conditions, none of which are mandated by law.

We charge a membership fee. We require you to continue to advance your professional education. And we require you to refrain from executing people. Or, you know, you can just not be part of our association. Nobody's forcing you to join us.

 

[Chanakya]

It's called freedom of association, and it's a fundamental human right.

You may find it ethical to performing executions on behalf of the state, but I don't. If you choose to do those things, I will no longer associate with you, nor will I allow you to associate yourself with me. You are free to choose which of those two things is more valuable to you: Performing executions, or my association.

Part of what makes my association so valuable is the strict standards to which I hold my associates. Not only do we prohibit many legal things that we feel do not reflect well on our members, but we also impose many additional requirements and conditions, none of which are mandated by law.

We charge a membership fee. We require you to continue to advance your professional education. And we require you to refrain from executing people. Or, you know, you can just not be part of our association. Nobody's forcing you to join us.

Fair, as far as the first three kinds of association, in the boldfaced portion of the OP. Absolutely, fair even as far as stringing impressive letters after one's name, that announce to the world one's high professional standards, and to that extent professionally help one's career. But when it's a question of a doctor's licence, without which the doctor simply cannot practice his profession? That sounds ...coercive, forcing ethics down one's throat at the point of a gun. And particularly doubtful, as it appears to me, when it goes against allowing one to assist with what the courts have mandated must be done.

 

[Thermal]

Short answer: if someone wants to be a member of that association, then yes they do get to dictate the professional ethical parameters for membership. Lawyers have to submit to ethical standards in order to practice, too.

 

[Ziggurat]

Fair, as far as the first three kinds of association, in the boldfaced portion of the OP. Absolutely, fair even as far as stringing impressive letters after one's name, that announce to the world one's high professional standards, and to that extent professionally help one's career. But when it's a question of a doctor's licence, without which the doctor simply cannot practice his profession? That sounds ...coercive, forcing ethics down one's throat at the point of a gun. And particularly doubtful, as it appears to me, when it goes against allowing one to assist with what the courts have mandated must be done.

To the extent that an organization wields any authority on behalf of the state, then the state has power to regulate that organization. Since medical licensing is a requirement of the state, the state gets to regulate the administration of medical licensing. The state can demand that licenses cannot be revoked for participating in an execution.

HOWEVER...

I don't think the AMA is actually involved in medical licensing. As far as I can tell, it's a strictly voluntary membership, you don't need to belong to the AMA to be a practicing doctor. So I think their code of ethics isn't legally enforceable, and wouldn't be grounds for losing a medical license.

The more interesting question, though, would be if employers used violations of the AMA code of ethics as grounds for firing or refusal to hire. And in that event, if the basis of the violation was a legal act, I think one might have a case for tortious interference against the AMA.

 

[theprestige]

Fair, as far as the first three kinds of association, in the boldfaced portion of the OP. Absolutely, fair even as far as stringing impressive letters after one's name, that announce to the world one's high professional standards, and to that extent professionally help one's career. But when it's a question of a doctor's licence, without which the doctor simply cannot practice his profession? That sounds ...coercive, forcing ethics down one's throat at the point of a gun. And particularly doubtful, as it appears to me, when it goes against allowing one to assist with what the courts have mandated must be done.

Gotcha. You've decided to see it as unreasonably coercive. There's not much point in telling you you're not allowed to have an unreasonable interpretation of the facts, so I'll leave you with this: Neither the law, nor the association, nor the associates, nor the courts, nor society in general sees it the way you do.

Especially the courts do not see a mandate for members of the AMA to perform executions. Since your interpretation is counter to the facts of the matter in practice, I think the burden of proof is on you to show why your interpretation should or does prevail.

 

[Chanakya]

Short answer: if someone wants to be a member of that association, then yes they do get to dictate the professional ethical parameters for membership. Lawyers have to submit to ethical standards in order to practice, too.

In general, sure, absolutely. But I meant in that particular kind of situation, where the association is essentially saying you can't go take up that particular kind of job, that the courts have decreed must be done.

 

[Checkmite]

The more interesting question, though, would be if employers used violations of the AMA code of ethics as grounds for firing or refusal to hire. And in that event, if the basis of the violation was a legal act, I think one might have a case for tortious interference against the AMA.

I don't see how that follows; if the AMA is a purely voluntary association, and if other businesses separately but also voluntarily value the ethical and professional standards the AMA imposes on its members enough to require (or just prefer) a good-standing AMA membership is that not also just a matter of freedom of association? Your argument implies that as a function of its existence the AMA should be legally required to accept and maintain members who refuse to follow its membership rules and that doesn't sound right to me.

I could buy that perhaps businesses or organizations who require an AMA membership in good standing for consideration should have to make that fact clear to an applicant before they apply, at most.

 

[Chanakya]

To the extent that an organization wields any authority on behalf of the state, then the state has power to regulate that organization. Since medical licensing is a requirement of the state, the state gets to regulate the administration of medical licensing. The state can demand that licenses cannot be revoked for participating in an execution.

Ah, I thought as much! (That is, I guessed as much; but wanted to check if my guess holds up against how things actually are in practice. You're clearly saying here that it would, in that kind of a case. Cool! )

HOWEVER...

I don't think the AMA is actually involved in medical licensing. As far as I can tell, it's a strictly voluntary membership, you don't need to belong to the AMA to be a practicing doctor. So I think their code of ethics isn't legally enforceable, and wouldn't be grounds for losing a medical license.

Ah. Ignorant of me, but I didn't know that! (Asked google just now, and a very quick answer --- I didn't dig at all deep --- is that state medical boards issue licenses, not AMA.)

I suppose my question itself, that I asked here, is something of a non-starter, then. (I was going by what was said in that thread. Or at least, what I gathered from what was said in that thread.)

Still, that leaves the question about whether it is okay for an association to prevent its members from assisting with what the courts have specifically ordered be done.

The more interesting question, though, would be if employers used violations of the AMA code of ethics as grounds for firing or refusal to hire. And in that event, if the basis of the violation was a legal act, I think one might have a case for tortious interference against the AMA.

Oh. That goes beyond what I was asking, that is, it goes off even deeper into the question than I was looking at. Agreed, entirely relevant to the question.

 

[Ziggurat]

I don't see how that follows; if the AMA is a purely voluntary association, and if other businesses separately but also voluntarily value the ethical and professional standards the AMA imposes on its members enough to require (or just prefer) a good-standing AMA membership is that not also just a matter of freedom of association?

I'm suggesting a scenario where it isn't really separate, that they're just going by whatever the AMA says.

 

[Checkmite]

I'm suggesting a scenario where it isn't really separate, that they're just going by whatever the AMA says.

But that could still be just a choice on the business's part, yes?

 

[Ziggurat]

Gotcha. You've decided to see it as unreasonably coercive. There's not much point in telling you you're not allowed to have an unreasonable interpretation of the facts

Before you get to interpretation you've got to make sure you're working with the right facts. And he made an error of fact which you missed, namely he previously thought that the AMA was involved in licensing even though it isn't. That error has now been corrected, and I think you'll see his interpretation shifts along with that.

 

[Chanakya]

Gotcha. You've decided to see it as unreasonably coercive. There's not much point in telling you you're not allowed to have an unreasonable interpretation of the facts,

It is coercive, if non-compliance equals debarment. (It doesn't, in fact, though, see Ziggurat's post above, and my response to him. But I'd based my question on the [apparently erroneous] assumption that it does, and that is the basis on which you seem to be responding.)

Whether it is unreasonably coercive, as deemed by courts of law, is what I was asking.

Sure, there's no point in telling me baldly and without explaining or defending it, that that's an unreasonable interpretation of facts. But if you can clearly show that, hell, that's what I'm asking. There's every point in doing that. That's the point of this thread.

so I'll leave you with this: Neither the law, nor the association, nor the associates, nor the courts, nor society in general sees it the way you do.

Especially the courts do not see a mandate for members of the AMA to perform executions.

Great, let's have cites for where the courts see differently than I do. Happy to accept that.

And, like I specified, obviously there's no mandate from courts specifically for anyone to perform executions. The mandate is simply for performing executions; and should AMA prevent members from assisting in that (generally) mandated thing, then is that legally tenable? Has that actually been tested in a court of law? Is what I was wondering, and asking.

Since your interpretation is counter to the facts of the matter in practice, I think the burden of proof is on you to show why your interpretation should or does prevail.

Cite, please. Back up your claim that "the facts of the matter in practice" is counter to what I suggested --- and that courts of law won't, if some doctor penalized or debarred by AMA for assisting in executions were to sue, hold AMA liable. If you can do that, then agreed, you'd have got your "gotcha". Not really, because you'd then only have given me what I was in any case asking for; but sure, if you can back that up, then happy to agree with you, and with my thanks.

 

[Ziggurat]

But that could still be just a choice on the business's part, yes?

I don't think it would be a slam dunk, but if the business is choosing to just accept the AMA's standards rather than developing their own through deliberation, they might still have a case. But that's enough into the weeds that I'm not confident in any direction.

 

[Emily's Cat]

American Academy of Actuaries has Professional Precepts that one might consider "extra-legal". I don't personally think they fit that description though. We're held to specific expectations in the interest of both our own integrity and the public's trust in our profession. But those precepts acknowledge that when laws contradict the code of conduct, the law wins.

 

[Thermal]

In general, sure, absolutely. But I meant in that particular kind of situation, where the association is essentially saying you can't go take up that particular kind of job, that the courts have decreed must be done.

I get the distinction. I'd loosely opine that the courts saying it must be done does not compel the association member dedicated to preserving life to carry that order out.

 

[Chanakya]

American Academy of Actuaries has Professional Precepts that one might consider "extra-legal". I don't personally think they fit that description though. We're held to specific expectations in the interest of both our own integrity and the public's trust in our profession. But those precepts acknowledge that when laws contradict the code of conduct, the law wins.

Yep, that agrees with my intuition. (My uninformed intuition, I'm afraid, but still.)

 

[Chanakya]

I get the distinction. I'd loosely opine that the courts saying it must be done does not compel the association member dedicated to preserving life to carry that order out.

Sorry to niptick, but the nit's kind of the point. Sure, courts saying generally that it must be done, does not compel some individual to necessary jump up and do it, absolutely not. But the question was, if the courts generally say something must be done; and if some member of some association volunteered to do it (volunteered not in the sense of free, even if volunteered in exchange of money); then can the association stop him from doing that?

Well, it clearly does, in this case. So if it does try to stop him; and if he challenges that attempt on their part in a court of law; then will what the AMA did be deemed legal by the court, or will the courts decide in favor of the debarred member? Is what I was wondering.

 

[Thermal]

Sorry to niptick, but the nit's kind of the point. Sure, courts saying generally that it must be done, does not compel some individual to necessary jump up and do it, absolutely not. But the question was, if the courts generally say something must be done; and if some member of some association volunteered to do it (volunteered not in the sense of free, even if volunteered in exchange of money); then can the association stop him from doing that?

Well, it clearly does, in this case. So if it does try to stop him; and if he challenges that attempt on their part in a court of law; then will what the AMA did be deemed legal by the court, or will the courts decide in favor of the debarred member? Is what I was wondering.

Gotcha,and apologies, little scatterbrained today.

I'd say that the association member already agreed to the ethics that forbade it, right? So they are going rouge, and going rouge means you're on your own, much like a vigilante can't count on police not charging him. Unless the governing association creates the niche that allows it, their ethics stand.