BackgroundIn this manuscript, we argue that within the context of phase IV, physician-researchers retain their fiduciary obligation to treat the patient-participants.DiscussionWe first clarify why the perspective that research ethics ought to be differentiated from clinical ethics is not applicable in phase IV, and therefore, why therapeutic orientation is most convivial in this phase. Next, assuming that ethics guidelines may be representative of common morality, we show that ethics guidelines see physician-researchers primarily as physicians and only secondarily as researchers. (...) We then elaborate on what a fiduciary obligation is and how some of the obligations are default duties. Lastly, we look at the fiduciary obligation of the physician-researcher in phase IV interventional trials.ConclusionThe fiduciary obligation to treat is not as easily waived as in earlier trials. Assuming the entwinement of research and practice in phase IV, physician-researchers, in collaboration with other researchers, investigators, and research ethics committees, should ensure that in terms of study design, methodology, and research practice, the therapeutic value of the research to the patient-participants is not diminished. (shrink)

Heated debate surrounds the question whether the relationship between physician-researcher and patient-subject is governed by a duty of care. Miller and Weijer argue that fiduciary law provides a strong legal foundation for this duty, and for articulating the terms of the relationship between physician-researcher and patient-subject.

Bioethics is currently witnessing unprecedented debate over the moral and legal norms governing the conduct of clinical research. At the center of this debate is the duty of care in clinical research, and its most widely accepted specification, clinical equipoise. In recent work, we have argued that equipoise and cognate concepts central to the ethics of clinical research have been left unnecessarily vulnerable to criticism. We have suggested that the vulnerability lies in the conspicuous absence of an articulated foundation in (...) moral and legal theory of the physician-researcher's duty of care to the patient-subject. We have repeatedly suggested that the requisite foundation is in the ethics of trust and the law of fiduciaries.Curiously, despite the absence of a published thorough exposition of our position, some have preemptively criticized our suggestion that the relationship between physician-researcher and patient-subject is fiduciary. Others have offered their own accounts of the implications of fiduciary law for the relationship. (shrink)

This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to the possibility of Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of fiduciary loyalty is best described by what we call the (...) account. This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing fiduciary obligations. configures fiduciary obligations as a species of contractual duties. The view that we call reduces fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of fiduciary loyalty. (shrink)

Health professionals, by agreeing to provide care, accept a fiduciary role that entails an obligation to preserve trust. We trust health professionals to be competent, to promote patient interests, and to properly utilize their discretionary power. While some health professionals argue that such activities as secretly screening for drugs or sexually transmitted diseases are necessary to fulfill their fiduciary obligations, these may actually constitute a breach of trust. In this paper, I argue that, in the specific case (...) of Munchausen’s Syndrome by Proxy, covert surveillance is ethically justifiable and does not constitute a breach of trust and an abuse of the fiduciary relationship. (shrink)

This essay, to appear in Contract, Status, and Fiduciary Law (Miller & Gold, 2016), explores three ways fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, (...) they are not especially revealing. Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of fiduciary obligations to it. In fact, the law of contract is more complex and serves a broader range of purposes than just giving private parties the ability to undertake legal obligations when they choose. Contract obligations are sometimes imposed for reasons other than party choice, and contract defaults and altering rules can be designed to serve other social purposes. A more nuanced understanding of the functions and design of contract law suggests that structural similarities between fiduciary obligations and contractual ones tell us less about the fiduciary obligations than we might have hoped. The explanation of why that is so, however, reveals important features both of contract law and of the law of fiduciary obligations. (shrink)

Conflicts of interest serve as a cipher for a radical rupture in the Flexnerian paradigm of medicine, and they can only be addressed if we recognize that health care is now practiced by institutions, not just individual physicians. By showing how "appropriate utilization of services" or "that which is medically indicated" is a function of socioeconomic factors related to institutional responsibilities, I point toward an administrative and organizational ethic as a needed component for addressing conflicts of interest. The argument is (...) developed by reviewing three important books. First, I consider Mark Rodwin's attempt to configure the economic structures of medicine so that classical fiduciary and scientific ideals can be fostered. Second, I consider E. Haavi Morreim's attempt to modify the classical ideals in order to account for new economic realities. Finally, by considering essays in a recent volume on conflicts of interest edited by Spece, Shimm, and Buchanan, I argue for a constructive dialectic between the approaches of Rodwin and Morreim. In order to properly address conflicts of interest, there must be a radical reassessment of medicine that accounts for the interrelation between scientific, ethical, and economic concerns. Until institutions come into view and professional ethics is developed to account for their role, legitimate interests and obligations of diverse parties cannot be harmonized. (shrink)

The practice of official apology has a fairly poor reputation. Dismissed as ‘crocodile tears’ or cheap grace, such apologies are often seen by the public as an easy alternative to more punitive or expensive ways of taking real responsibility. I focus on what I call the role-playing criticism: the argument that someone who offers an apology in public cannot be appropriately apologetic precisely because they are only playing a role. I offer a qualified defence of official apologies against this objection, (...) considering them through the lens of fiduciary duties. This focus draws our attention to formal or impersonal relationships that are nevertheless normatively rich, capable of sustaining trust, concern, and care. At the same time, I highlight several pitfalls for fiduciary apologisers, including the tension between apology as a mode of truth telling and the duty of confidentiality. I consider whether the fiduciary apologiser, in reflecting on her fiduciary obligations, has ‘one thought too many’ for genuine apology, and argue that the issue of mixed motives is not limited to fiduciary contexts, cautioning against excessive idealism in our conception of apology. I conclude with some reflections on possible conflicts between fiduciary obligations and the conscientious desire to apologise. (shrink)

For several decades, international law has recognized certain norms such as the prohibitions against genocide, slavery, and military aggression as "jus cogens"- peremptory law which supersedes conflicting international treaties and customs. Despite widespread acceptance of the jus cogens concept, legal theorists continue to debate whether peremptory norms derive their legal authority from state consent, natural law, or the demands of international public order. Anxiety over peremptory norms' legal basis has frustrated efforts to clarify the scope and content of jus cogens, (...) as well as placing peremptory norms on a collision course with inherited notions of state sovereignty. Drawing on Immanuel Kant 's conception of fiduciary relations, this Article develops a new theory of jus cogens based on the idea that states are fiduciaries of their people. According to the fiduciary theory, peremptory norms do not stand in opposition to state sovereignty; rather, they are constitutive of state sovereign authority because all states owe their subjects a fiduciary obligation to comply with such norms. The fiduciary model of the state resolves the longstanding tension in international legal theory between peremptory norms and state sovereignty and points to discrete formal and substantive criteria for identifying peremptory norms. (shrink)

The fundamental interaction that triggers a fiduciary obligation is the exercise by one party of discretionary power of an administrative nature over another party's interests, where the latter party is unable, as a matter of fact or law, to exercise the fiduciary's power. The goal of this paper is to demonstrate that there is something "deeply fiduciary" about the interaction between a state and its subjects. The fiduciary nature of this relationship provides the justification for (...) the state's legal authority and its obligation to act in the interests of its subjects. The practical manifestation of the state's overarching fiduciary obligation to its subjects is the rule of law. (shrink)

Virtual assistants (VAs), like Amazon’s Alexa, Google’s Assistant, and Apple’s Siri, are on the rise. However, despite allegedly being ‘assistants’ to users, they ultimately help firms to maximise profits. With more and more tasks and leeway bestowed upon VAs, the severity as well as the extent of conflicts of interest between firms and users increase. This article builds on the common law field of fiduciary law to argue why and how regulators should address this phenomenon. First, the functions of (...) VAs resemble established fiduciaries, namely mandataries when they perform tasks on behalf of users, and increasingly advisors whenever they provide recommendations or suggestions. Second, users grant firms deploying VAs ever more discretion over their economic, and more and more significant non-economic interests, such as their health or finances. This delegation of power renders users vulnerable to abuse of power and inadequate performance by firms deploying VAs. Moreover, neither specification or monitoring nor market forces are alternatives that can sufficiently protect users. Thus, regulation is needed, departing from the recognition of the relationship between firms deploying VAs and users as a fiduciary relationship. In the EU, this could be realised through fiduciary requirements for VAs. First and foremost, to adequately protect users from abuse of power by firms deploying VAs, the core fiduciary duty of loyalty should be converted into corresponding fiduciary requirements for VAs, obliging firms to align VAs with their users. (shrink)

The United States Constitution is, in form and fact, a kind of fiduciary instrument, and government officials acting pursuant to that document are subject to the background rules of fiduciary obligation that underlie all such documents. One of the most basic eighteenth-century fiduciary rules was the presumptive rule against subdelegation of discretionary authority. The rule was presumptive only; there were recognized exceptions that permitted subdelegation when it was specifically authorized by the instrument of agency, when it (...) was validated by custom or tradition, and when it was necessary for accomplishment of the agent’s authorized purposes. To what extent might that third exception justify broad subdelegation of legislative authority by Congress to administrative agencies? Part of the answer, which is beyond the aims of this essay, depends on ascertaining the nature of the job entrusted to Congress under the Constitution, which means ascertaining the scope of Congress’s delegated powers. Another part of the answer depends on the extent to which expertise can and may serve as justification for entrusting others with tasks with which one has previously been entrusted. What would a responsible fiduciary approach to expertise—whether for purposes of advice or subdelegation—look like in the modern administrative state? The answer requires a careful examination of the idea of expertise and how it can be applied, and misapplied, in modern governance. This essay offers only the briefest introduction to that problem by trying to frame the questions that responsible fiduciaries need to ask before subdelegating authority. Such questions include: (1) What are the limits of the principal’s own knowledge? (2) What reason is there to think that gaps in that knowledge can, even in principle, be filled by experts? (3) Will application of expert knowledge lead in any particular instance lead to better decisions, given the ubiquitous problem of second-best? and (4) Have you picked the right experts, and will they actually apply expertise rather than using their claim to expertise as a cover for pursuing other goals? These questions in the context of the modern administrative state are just one aspect of a broader problem of nonexperts trying to evaluate—both before and after the fact—the work product of experts. (shrink)

In meeting legal or professional fiduciary obligations, a fiduciary can sometimes come to share a special moral relationship with her beneficiary. Special moral relationships produce special moral obligations. Sometimes the obligations faced by a fiduciary as a result of her moral relationship with her beneficiary go beyond the obligations involved in the initial fiduciary relationship. How such moral obligations develop is sometimes under the control of the beneficiary, or of an outside party. As a result, the (...) fiduciary can be the target of a distinctive kind of moral manipulation; it is sometimes possible to force a fiduciary to perform a particular act by placing her into circumstances under which she is morally obliged to perform it, because all her other options are morally unacceptable. This is moral blackmail. Moral blackmail is a powerful force within many sorts of human interactions. By understanding the ways in which fiduciaries become vulnerable to moral blackmail, we can better understand the pressures faced by fiduciaries in keeping their personal and professional lives separate, the dynamics of certain kinds of employment negotiations, and the injustice that results when women take on the bulk of the work within caring professions. (shrink)

In meeting legal or professional fiduciary obligations, a fiduciary can sometimes come to share a special moral relationship with her beneficiary. Special moral relationships produce special moral obligations. Sometimes the obligations faced by a fiduciary as a result of her moral relationship with her beneficiary go beyond the obligations involved in the initial fiduciary relationship. How such moral obligations develop is sometimes under the control of the beneficiary, or of an outside party. As a result, the (...) fiduciary can be the target of a distinctive kind of moral manipulation; it is sometimes possible to force a fiduciary to perform a particular act by placing her into circumstances under which she is morally obliged to perform it, because all her other options are morally unacceptable. This is moral blackmail. Moral blackmail is a powerful force within many sorts of human interactions. By understanding the ways in which fiduciaries become vulnerable to moral blackmail, we can better understand the pressures faced by fiduciaries in keeping their personal and professional lives separate, the dynamics of certain kinds of employment negotiations, and the injustice that results when women take on the bulk of the work within caring professions. (shrink)

While corporate fiduciary duties in many jurisdictions are generally understood to be owed to shareholders, recent Canadian Supreme Court cases have held that directors owe their duties to the corporation, period, not to shareholders or any other stakeholders. This development has introduced significant indeterminacy to the law since it is not clear what such a conception of the duty requires. The Supreme Court did, however, make one clear statement: it held that directors owe a fiduciary duty to ensure (...) that their corporations obey statutory law. Such a duty encourages compliance with law, but may over-encourage compliance: individual directors do not necessarily gain personally from legal breaches, but may lose personally from them because of fiduciary liability, so they will have excessively strong incentives to avoid such breaches. The Article connects the fiduciary duty to obey law with recent developments in financial regulation that have increased the obligations on directors of financial institutions to oversee risk. By requiring directors to be engaged with risk at a governance level, regulators have enhanced the probability that directors will face liability under their fiduciary duties if their institutions do not comply with financial regulations. As the Article explains, the policy tradeoff between enhanced compliance benefits and over-compliance costs of fiduciary liability is different in the context of financial regulation from that in other settings. For example, significant corporate penalties, as opposed to penalties borne by individual directors, may be inconsistent with the prudential goals of regulation, perhaps because of toobig- to-fail concerns. The fiduciary duty to cause the corporation to obey financial regulation, and a stricter application of this duty than the highly deferential standard that exists in Delaware law, has advantages that do not exist in other legal and regulatory contexts. (shrink)

This paper argues that since the last decades of the twentieth century the discipline of modern finance has directed fiduciaries to act "rationally"—that is, in the sole financial interest of their funds--downplaying the effects of their investments on others. This approach has deemphasized a previous, more "reasonable" interpretation of fiduciary duty that drew on a conception of prudence characterized by wisdom, discretion and intelligence—one that accounts to a greater degree for the relationship between one's investments and their effects on (...) others in the world. The reasonable approach allows fiduciaries to a greater degree to assess the objective well-being of beneficiaries, to recognize fundamental sources of investment reward in the economy, and to fulfill their obligations to allocate benefits impartially between current and future generations. Reason and rationality can work in a complementary fashion to make investment long-term in its perspective and beneficial to society and the economy as well as to specific funds or portfolios. Determining how to accomplish this challenging task is part of the obligation of fiduciaries as they seek to realize the full potential of the investment assets entrusted to their care. (shrink)

One of the most important questions in the ethics of human clinical research asks what obligations investigators owe the people who enroll in their studies. Research differs in many ways from standard care - the added uncertainties, for instance, and the nontherapeutic interventions such as diagnostic tests whose only purpose is to measure the effects of the research intervention. Hence arises the question whether a physician engaged in clinical research has the same obligations toward research subjects that he owes his (...) medical patients, or whether they differ in any fundamental way.Perhaps the most common answer is that the relationship is the same. Investigators, like physicians, are said to be fiduciaries of the volunteers who enroll in research trials. Each owes the best available medical care, which means that a physician can only justify enrolling his patient in research if the study meets the requirements of clinical equipoise, namely, that there is legitimate disagreement within the medical community as to whether the standard treatment or the investigational intervention is superior. (shrink)

One of the most important questions in the ethics of human clinical research asks what obligations investigators owe the people who enroll in their studies. Research differs in many ways from standard care - the added uncertainties, for instance, and the nontherapeutic interventions such as diagnostic tests whose only purpose is to measure the effects of the research intervention. Hence arises the question whether a physician engaged in clinical research has the same obligations toward research subjects that he owes his (...) medical patients, or whether they differ in any fundamental way.Perhaps the most common answer is that the relationship is the same. Investigators, like physicians, are said to be fiduciaries of the volunteers who enroll in research trials. Each owes the best available medical care, which means that a physician can only justify enrolling his patient in research if the study meets the requirements of clinical equipoise, namely, that there is legitimate disagreement within the medical community as to whether the standard treatment or the investigational intervention is superior. (shrink)

This paper serves two purposes: first, the proposition of an ethical fiduciary theory that substantiates the often-cited assertion that the patient–physician relationship is fiduciary in nature; and second, the application of this theory to the case of informed consent. Patients’ decision-making preferences vary significantly. While some seek fully autonomous decision-making, others prefer to delegate parts of their decision. Therefore, we propose an ethical fiduciary theory that allows physician and patient to jointly determine the physician’s role on a (...) spectrum from fiduciary as advisor to fiduciary as agent. Drawing on legal concepts of the fiduciary relationship and on phenomenological accounts of obligation by Lévinas and Løgstrup, our theory relies on the key attributes of trust, vulnerability and otherness. Finally, practical implications of this theory for the informed consent process are developed: we propose a preassessment of patients’ risk and value profiles as well as a restructuring of the oral consent interview and the written consent materials. (shrink)

A critical issue for the future growth of socially responsible investment (SRI) is to what extent institutional investors such as pension funds can be persuaded to engage in it. This paper considers attempts at justifying such engagement stemming from a range of (re-)interpretations of the fiduciary duties owed by pension funds to their beneficiaries, and thereby develops a hypothesis concerning the most effective political or legal remedy. Previous commentary suggests that fiduciary duty either already mandates SRI for pension (...) funds, or at least can be made to do so rather easily. In contrast with this, however, this paper finds that none of the considered interpretations is able to justify engagement on social and environmental issues across the board. Indeed, the problem to some extent seems rooted in the very concept of fiduciary duty. The paper is relevant to current attempts at justifying SRI through reinterpretations of fiduciary duty, provided mainly by legal scholars and practitioners. By addressing the more philosophical issue of how far the concept of fiduciary duty can be “stretched” to accommodate SRI (a project of conceptual rather than legal clarification), it provides an evaluation of the contemporary debate which is independent of squabbles about existing law. The paper shows that there are conceptual limits to attempts at redefining fiduciary duty. But this does not mean that pension funds' engagement in SRI is unjustified or unjustifiable more generally. A more promising way to legally mandate SRI may be through what is dubbed independent social and environmental obligations. (shrink)

In the first part of the paper, the author discusses the origin and obligation of the medical profession and argues that the duty of fidelity in the context of a patient–professional relationship (PPR) is the central obligation of medical professionals. The duty of fidelity entails seeking the patient’s best interests even at the expense of the professional’s own, and refusing to treat a risk-patient infected by SARS is a breach of fidelity because the medical professional is involved in (...) a situation of conflict of interests and places his/her own health interests ahead of the patient. The author attributes the failure to the fact that professional ethical codes are not legally enforceable, and this failure at the microethical level damages the integrity of the profession at the macroethical level. The author argues that professional autonomy must be subordinated to professional fidelity for the medical profession to survive as a social institution. In the second part of the paper, the author shows that the PPR has most of the important attributes of a fiduciary relationship, and analyzes several important court cases in some common law jurisdictions to illustrate the increasing importance of fiduciary law in adjudicating disputes between patients and medical professionals, and appeals to law courts and legislatures to apply more stringent fiduciary principles on the medical profession to ensure that the professional duty of fidelity is enforced and the goal of medicine fulfilled for the interests of members of the community who has established the medical profession in the first place. (shrink)

What are the ethical obligations of the sellers of financial products to their customers? Stockbrokers in the U.S. have a legal and ethical requirement to recommend only “suitable” investments to their customers. This is a fairly weak standard. Currently, there are proposals to raise the standard to a fiduciary one in which the recommendations would have to be in the best interests of the clients. Brokers sell solutions to financial problems. Similar to an auto mechanic or a doctor, the (...) product often consists of both the professional advice and its implementation. There are numerous conflicts of interest between brokerage firms and their customers in that the products that pay the highest commissions may not be the best ones for the customers. The societal perspective adds complications, however. Society depends on modern financial markets to raise capital for productive enterprises and to spread risk. Issuers of financial products need distribution channels for their products just like the producers of any other products. Commissions create powerful incentives for the distribution channels, but at the same time produce conflicts of interest—a type of ethical pollution. Just as our society tolerates some pollution as a byproduct of other useful activities, it may be useful to tolerate some of these financial conflicts of interest. The nature of the relationship should govern the ethical standard. Those selling advice, regardless of how they label themselves, should adhere to a best-interest fiduciary standard. More limited relationships should be limited to the mandate involved in the relationship. (shrink)

This paper examines trust as a fundamental aspect of fiduciary relationships in education. The specific relationship under examination is that of academic employee and university employer. Both have the value of trust assigned to them as an implicit part of their social and professional contract. The setting is Australia, but the principles apply to any democratic jurisdiction and educational level or location, where fiduciary principles are a pre-condition for healthy and trustworthy working relationships. The paper firstly discusses the (...) meaning and application of ‘trust’ and ‘fiduciary’, and considers the codes that regulate fiduciary relationships in education. It then asks what happens if and when the fiduciary duties and obligations are not upheld, advancing that question through an employment law case against an Australian university, for alleged breach of the Fair Work Act. The analysis shows what may be the outcome when fiduciary trust between employee and employer is breached, how it may happen, and the consequences of this. The aim of the paper is to throw light on the value of trust for robust working relationships in academic life. Ultimately, the paper shows that trust is axiomatic to a working system of justice in a healthy educational workplace. (shrink)

The prevailing view in Canada of the Crown-Native fiduciary relationship is that it arose as a consequence of the Crown taking on the role of intermediary between First Nations and British settlers eager to acquire Aboriginal lands. First Nations are sometimes deemed to have surrendered their sovereignty in exchange for Crown protection. The author suggests that the sovereignty-for-protection argument does not supply a compelling account of how Aboriginal peoples lost their sovereignty to the Crown. Furthermore, Aboriginal treaties compel the (...) courts to take seriously Aboriginal peoples' sovereign authority to treat with the Crown. First Nations did not intend to surrender their sovereignty through the treaty process, but courts assume that this is the result. Against this background, the author argues that the Supreme Court of Canada has imposed fiduciary obligations on the Crown in order to legitimise the Crown's assertions of sovereignty over Canada's Aboriginal peoples. (shrink)

Institutional investors control almost 60% of all assets under management worldwide and encompass a wide variety of organizations. Despite this reach, however, institutional investors have not received the normative scrutiny they merit beyond general discussions around their legally grounded fiduciary obligations to their beneficiaries. This paper offers a discussion of institutional investor ethical obligations in light of their specific attributes. We propose that the different characteristics of institutional investors and the diverse roles they play in the marketplace inform the (...) scope of their activities, and, in turn, the different ways in which their basic ethical obligations can be fulfilled. (shrink)

College and university academic deans must comply with two sets of professional regulations. As faculty members, they must adhere to their institution's internally generated code of ethics. As administrators and agents of their institution, they must meet the fiduciary duties of diligence and loyalty. Both sets of regulations are similar in the obligations they impose on a dean, the degree of care they demand of a dean in the execution of those obligations, the nature of a breach of those (...) obligations by a dean, the procedures by which the breach of an obligation is addressed, and the remedies available to the institution against a dean following a breach. Colleges and universities should develop and publish both an ethics code and a fiduciary code. Both sets of regulations, however, should avoid common shortcomings. Ethics codes should not be too specific or too general, overly simplistic or highly complex, or outstripped by the rapidly changing world of academia. A codification of fiduciary duties should avoid the problems of poor definition or ambiguity. Developing an institutional code of professional responsibility that incorporates both ethical and fiduciary responsibilities would provide an academic dean with a more comprehensive benchmark for professional expectations and responsibilities. The interplay between the two sets of complementary regulations would further clarify the professional expectation of an academic dean and may also ameliorate some of the shortcomings inherent in an ethics code. (shrink)

This paper examines the role of vulnerability in the basis of business ethics by criticizing its role in giving a moral substantial character to fiduciary duties to shareholders. The target is Marcoux’s (Bus Ethics Q 13(1):1–24, 2003) argument for morally substantial fiduciary duties vis-à-vis the multifiduciary stakeholder theory. Rather than proceed to support the stakeholder paradigm, a conception of vulnerability is combined with Heath’s 2004) “market failure” view of the ethical obligations of managers as falling out of their (...) roles as professionals involved in the institution of the market. The result is the core of a theoretically defensible and managerially motivating and deployable ethic. (shrink)

In the United Kingdom (UK), ethical guidance for doctors assumes a therapeutic setting and a normal doctor–patient relationship. However, doctors with dual obligations may not always operate on the basis of these assumptions in all aspects of their role. In this paper, the situation of UK occupational physicians is described, and a set of models to characterise their different practices is proposed. The interaction between doctor and worker in each of these models is compared with the normal doctor–patient relationship, focusing (...) on the different levels of trust required, the possible power imbalance and the fiduciary obligations that apply. This approach highlights discrepancies between what the UK General Medical Council guidance requires and what is required of a doctor in certain roles or functions. It is suggested that using this modelling approach could also help in clarifying the sources of moral conflict for other doctors with “dual obligations” in their various roles. (shrink)

At a minimum, a fiduciary is one who is entrusted to act for the benefit of others. But as the essays in this volume indicate, fiduciary relationships can be conceived or argued to be thicker and/or more robust. In addition to a relation of trust and action on behalf of another, fiduciary relationships are often thought to include some or all of the following additions: asymmetries of power, knowledge, skill or ability; discretion or reasonable judgment on the (...) part of the fiduciary; loyalty of the fiduciary to the interests of the trustor, or potential beneficiary; and the ethical obligation to act in good faith, with due care, or with professional or special knowledge in advancing the interests of the trustor. Due to the vulnerability of dependents, their trust in fiduciaries, and ethical obligations of trustees to act beneficently, fiduciary relationships lie at the heart of much ethical reflection, discourse and argumentation. This is especially so for professional fields in which fiduciaries have special knowledge and skill, and consequently special powers. Yet, apart from the specialized sub-disciplines of business ethics, legal ethics and medical ethics, fiduciary roles and relationships have not received much scrutiny and discussion in philosophy. In our view, this deficiency is best remedied by treating fiduciary ethics as a more general sub-field within ethics and deserving of attention in its own right. (shrink)

Fiduciary duty is not restricted merely to the property of shareholders but includes ethical obligations to a wider constituency stakeholders in terms of power. Several approaches to corporate social responsibility (CSR) are considered in terms of their respective orientations to the external world. Robert Greenleaf's notion of "service to others" or "servant-leadership" is considered as a case of the fifth level approach to CSR. An historical perspective offers a precedent for reclaiming corporate charter grants as a means for reinstating (...) the corporation's responsibilities to the wider community. Two propositions are offered to help us revision corporations in ways that would enable their total service obligations to all constituencies. (shrink)

Fiduciary law is in a state of flux. We know that the core obligation of a fiduciary is an obligation of loyalty, but we are less sure what ‘fiduciary loyalty’ encompasses. We know a fiduciary has duties not to profit or put himself in positions of conflict, but how these duties interact with other non-fiduciary duties (whether tortious or contractual or otherwise) is more difficult to discern. Against this background, Conaglen has made a (...) recent contribution to our understanding of the fiduciary doctrine. He suggests that fiduciary loyalty offers a subsidiary and prophylactic form of protection for non-fiduciary duties. This article considers his analysis, and argues that it is not supported by case law and creates a number of inexplicable implications for the fiduciary doctrine. In view of these difficulties, Conaglen's analysis should be rejected. (shrink)

Defensive medicine has become pervasive. Defensive medicine is often thought of as a systems issue, the inevitable result of an adversarial malpractice environment, with consequent focus on system-responses and tort reform. But defensive medicine also has ethical and professionalism implications that should be considered beyond the need for tort reform. This article examines defensive medicine from an ethics and professionalism perspective, showing how defensive medicine is deeply problematic. First, a definition of defensive medicine is offered that describes the essence of (...) defensive practice: clinical actions with the goal of protecting the clinician against litigation or some adverse outcome. Ethical arguments against defensive medicine are considered: defensive medicine is deceptive and undermines patient autonomy; defensive medicine subjugates patient interests to physician interests and violate fiduciary obligations; defensive medicine exposes patients to harm without benefit; defensive medicine undermines trust in the profession; and defensive medicine violates obligations of justice. Possible arguments in favor of defensive medicine are considered and refuted. Defensive practice is therefore unethical and unprofessional, and should be viewed as a challenge for medical ethics and professionalism. (shrink)

This paper takes a unique approach to framing the political obligation social media companies like Twitter and Facebook have in a democratic society by casting the public sphere as a common-pool resource. Over the last decade or so much of our civic discourse has moved to social media platforms such as Facebook and Twitter. This paper argues that just as citizens have an obligation to one another, social media companies have an obligation to promote agonistic forms of (...) civic, political discourse through their algorithms. This algorithmic obligation that social media companies have must be reconciled with social media companies’ formulation of their fiduciary shareholder obligations. We posit that a commons based view of social media discourse allows these companies to make both a democratic health and fiduciary interest argument. (shrink)

Is parental control over children best understood in terms of trusteeship or similar fiduciary obligations? This essay contemplates the elements of legal trusts and fiduciarity as they might relate to the moral relationship between children and parents. Though many accounts of upbringing advocate parent-child relationship models with structural resemblance to trust-like relationships, it is unclear who grants moral trusts, how trustees are actually selected, or how to identify proper beneficiaries. By considering these and other classical elements of relationships of (...) trust, this essay seeks to clarify and explore the trust model’s role, if any, in understanding children’s rights. Such exploration raises the possibility that another element of common law, the duty to rescue, may serve to enhance the trust model of children’s rights. (shrink)

We propose the ‘patient-worker’ as a theoretical construct that responds to moral problems that arise with the globalization of healthcare and medical research. The patient-worker model recognizes that some participants in global medical industries are workers and are owed worker's rights. Further, these participants are patient-like insofar as they are beneficiaries of fiduciary relationships with healthcare professionals. We apply the patient-worker model to human subjects research and commercial gestational surrogacy. In human subjects research, subjects are usually characterized as either (...) patients or as workers. Through questioning this dichotomy, we argue that some subject populations fit into both categories. With respect to commercial surrogacy, we enrich feminist discussions of embodied labor by describing how surrogates are beneficiaries of fiduciary obligations. They are not just workers, but patient-workers. Through these applications, the patient-worker model offers a helpful normative framework for exploring what globalized medical industries owe to the individuals who bear the bodily burdens of medical innovation. (shrink)

The current proxy voting system in the United States has become the subject of considerable controversy. Because institutional investment managers have the authority to vote their clients’ proxies, they have a fiduciary obligation to those clients. Frequently, in an attempt to fulfill that obligation, these institutional investors employ proxy advisory services to manage the thousands of votes they must cast. However, many proxy advisory services have conflicts of interest that inhibit their utility to those seeking to discharge (...) their fiduciary duties. In this article, we describe the current proxy advisory network as an example of how current notions of conflicts of interest fall short when explaining the behavior of an interconnected set of market players whose remit is to act in the best interests of their investors. We discuss what participants in this system should do to bring transparency and accuracy to the proxy advice industry. (shrink)

This article presents a framework intended to provide pension funds with practical guidance for the successful implementation of a sustainable investing strategy. The framework is developed with respect to the UK and US pension funds (as these share certain common legal characteristics) and focuses on the changes that pension funds adopting such a strategy should make to their investment strategies and governance (particularly through the formulation and articulation of clear investment mission and strong investment beliefs). The article proceeds with a (...) review of socially responsible investment (SRI) and more recent responsible investment (RI) literature, in the context of growing public awareness (but not necessarily understanding) of the concept of sustainability ("Literature review of SRI field: SRI, RI and sustainable investing" section). It then examines the literature on pension fund governance, arguing the need for more detailed practical guidance for funds moving towards sustainable investing, especially for those implementing a sustainable investing strategy ("Anglo-American pension fund governance" section). It presents the framework for the practical implementation of sustainable investing in the "Sustainable investing framework" section. Finally, we review the relevant Anglo-American legal backdrop, outlining how pension funds adopting our framework should approach their fiduciary obligations, and then discussing potential regulatory enablers of sustainable investment ("Legal context: barriers to and enablers of sustainable investing" section). (shrink)

Researchers do not owe their subjects the same level of care that physicians owe patients, but they owe more than merely what the research protocol stipulates. In keeping with the dynamics of the relationship between researcher and subject, they have limited but substantive fiduciary obligations.