It is that time of year when federal compliance officers, clinical ethicists, and staff counsels are flooded with queries about the legal and ethical acceptability of gifts. And no wonder, all the winter holidays often involve giving gifts. The simple and spontaneous acts of giving and receiving gifts become more complicated and deliberative in the federal health care system. Both legal rules and ethical values bear upon who can offer and accept what gift to whom upon what occasion and in what amount. The “Standards of Ethical Conduct for Employees of the Executive Branch” devotes 2 entire subparts to the subject of gifts.1 We will examine a small section of the document that can become a big issue for federal practitioners during that holiday—gifts from patients.
First, veterans (patients) are “prohibited sources” in section 5 CFR §2635.203 (d).1 And since VA employees are subject to restrictions on accepting gifts from sources outside the government, unless an exception applies, federal employees may not accept a gift because of their official position (eg, Federal Practitioner, editor-in-chief) or a gift from a patient (prohibited source; [5 CFR §2635.201]).
It might seem like this is going to be a very short column this month, as gifts from patients are forbidden. Yet, a Christmas card or homemade fudge isn’t really a gift, is it?
5 CFR §2635.203 (b) defines what is and is not a gift: For example, minor items of food or items like a thank-you card are specifically excluded in section (b) 1-10.
Is Christmas an exception or are just types of gifts excluded?
There are exceptions to the general regulation about accepting gifts from prohibited sources. Many staff will recall hearing about the “$20 rule,” which is actually the “$20-50” rule stating that a federal employee may accept a gift from a patient (prohibited source) if the value of said gift is under $20 and the employee does not accept more than $50 from any single source in a calendar year. §2635.204 lists the exceptions. However, starting in 2017, the regulations changed to require that federal employees also consider not just whether they could accept a gift but—ethically—they should take the gift even if it was permitted under the law. The Office of Government Ethics made this change because it wanted to emphasize the importance of considering not just how things are but how things appear to be. The regulations contain detailed descriptions of what employees should think about and stipulates that the decisions will not be further scrutinized (5 CFR §2635.201[b]).1
Based on this new emphasis on appearances, ethically, no doctor or nurse should accept the keys to a new BMW from a patient who owns a luxury car dealership. But what about more prosaic and probable presents: the holiday cookies a single father made with his children for the nurse practitioner who has been his primary care practitioner for years; the birdhouse a Vietnam veteran made in her crafts class for the surgeon who removed her gallbladder; or even the store-bought but no less heartfelt tin of popcorn from an elderly veteran for the hospitalist who saw him through a rough bought of pneumonia?
The rules about practitioners accepting patient gifts are rational and unambiguous: It is the values conflict surrounding patient gifts that is often emotion driven and muddled; it may be easier and safer to adopt the “just say no” policy. And yet, while this might seem the most unassailable position to avoid a conflict of interest, could this possibly be a more practitioner- than patient-centered standard? Authoritative sources in the ethics literature are equally divided and ambivalent on the question.2,3 The American College of Physicians Ethics Manual states: “In deciding whether to accept a gift from a patient, the physician should consider the nature of the gift and its value to the patient, the potential implications for the patient-physician relationship of accepting or refusing it, and the patient’s probable intention and expectations.”4 A small gift as a token of appreciation is not ethically problematic. Favored treatment as a result of acceptance of any gift is problematic, undermines professionalism, and may interfere with objectivity in the care of the patient.4
Many an ethics commentator have cautioned, “beware of patients bearing gifts.”5 In making an ethical assessment of whether or not to accept the gift, a key question a practitioner needs to ask him or herself is about the patient’s motive. Even the patient may be unaware of the reasons behind their giving, and the wise practitioner will take a mindful moment to think about the context and timing of the gift and the nature of his or her relationship to the patient. Sadly, many of our patients are lonely especially at this family time of year and on some level may hope the gift will help slide the professional relationship toward a more personal one. Some patients may think a gift might earn them preferential treatment. Finally, a few patients may have a romantic or sexual attraction toward a clinician.
Often in the latter 2 cases, a pattern will develop that discloses the patient’s true intent. Very expensive gifts, monetary gifts, excessively personal gifts, or frequent gifts should alert the practitioner that more may be going on. A kind reminder to the patient that providing good care is the only reward needed may be sufficient. For practitioners whose ethical code does not permit them to accept gifts, then a genuine thank you and an explanation of the rules and/or values behind the refusal may be necessary. There are other times when the practitioner or a supervisor/advisor may need to reset the boundaries or even to transfer the patient to another practitioner. The norms in mental health care and psychotherapy are more stringent because of the intimacy of the relationship and the potential vulnerability of patients.6
For gifts that seem genuine and generous or cost a trivial amount, then there is an ethical argument to be made for accepting them with gratitude. In many cultures, hospitality is a tradition, and expressing appreciation a virtue, so when a practitioner refuses to graciously take a small gift, they risk offending the patient. Rejection of a gift can be seen as disrespectful and could cause a rupture in an otherwise sound practitioner-patient relationship. Other patients experience strong feelings of gratitude and admiration for their practitioners, stronger than most of us recognize. The ability for a patient to give their practitioner a holiday gift, particularly one they invested time and energy in creating or choosing, can enhance their sense of self-worth and individual agency. These gifts are not so much an attempt to diminish the professional power differential but to close the gap between 2 human beings in an unequal relationship that is yet one of shared decision making. All practitioners should be aware of the often underappreciated social power of a gift to influence decisions.
At the same time, clinicians can strive to be sensitively attuned to the reality that, sometimes the cookie is just a cookie so eat and enjoy, just remember to share with your group. External judgments are often cited as practical rules of thumb for determining the ethical acceptability of a gift: Would you want your mother, newspaper, or colleague to know you took the present? I prefer an internal moral compass that steers always to the true north of is accepting this gift really in the patient’s best interest?