Ishmeal Bradley MD
Faculty Peer Reviewed
Please also see the commentary by Antonella Surbone, MD PhD FACP, Ethics Editor
Consider this: what would you do if a patient with terminal pancreatic cancer told you, his primary care doctor of twenty years, that he wanted your help to end his life? Or, what if a woman in her first trimester who contracted an infection that threatened the health of her fetus asked you, her obstetrician, to perform an abortion? Ethical questions like these are encountered not infrequently today. However, they can pose a moral dilemma for the physician. Where are the boundaries between professional obligations and personal morality? Can personal morality override professional duty when it comes to patient care?
Conscientious objection in medicine is the notion that a health care provider can abstain from offering certain types of medical care with which he/she does not personally agree. This includes care that would otherwise be considered medically appropriate. An example would be a pro-life obstetrician who refuses to perform abortions or sterilizations. On the one hand, there is the argument that physicians have a duty to uphold the wishes of their patients, as long as those wishes are reasonable. On the other is the thought that physicians themselves are moral beings and that their morality should not be infringed upon by dictates from the legislatures, medical community or patient interests.
Several states in the last few years have passed laws that protect health care providers from retribution if those providers, who invoke their conscience, refuse to provide medical care. One example is the Michigan Conscientious Objector Policy Act of 2004 which allows providers to decline offering care if that care compromises the provider’s beliefs, except in the event of an emergency.[1] Furthermore, a state law in Georgia extends conscientious objection to pharmacists by allowing them to refuse to fill a prescription for emergency contraception, even to a victim of sexual assault.[2]
This issue was reignited in December 2008 by the passage of the Medical Conscience Rule by the Department of Health and Human Services in the closing weeks of the Bush administration. Then-Secretary Michael Leavitt sought to expand the scope of several laws passed by Congress in the 1970s, 1990s, and 2000s.[3] Those previous laws were designed to protect health care entities-individual providers; insurance companies; hospitals; charitable organizations providing medical care-who received any form of federal funding from reprisal if they chose not to provide certain medical services that violated their conscience, most notably abortion services.
Specifically, the goal of the new law is to “prohibit recipients of certain federal funds from coercing individuals in the health care field into participating in actions they find religiously or morally objectionable” and to “prohibit discrimination on the basis of one’s objection to, participation in, or refusal to participate in, specific medical procedures, including abortion and sterilization.”[4] Also, the new regulation aims to educate the health care community about the protections afforded by federal law, ensure compliance with current federal law, hear grievances brought to the Department’s attention by plaintiffs, and to “take an active role in promoting open communication within the health care field…[in order to foster] a more inclusive, tolerant environment…than [what] may currently exist.”[4] Any health care entity found to be in violation of the new law would be subject to a termination of federal support and repayment of funds already received.
In a statement released on the DHHS website, Secretary Leavitt expressed that “health care providers should not be forced to choose between good professional standing and violating their conscience.” Critics say that there are already federal and state laws on this issue, and that the Secretary was acting more out of ideology than for concern for the actual dilemma. Also, the language of the Medical Conscience Rule is so broad that it could seriously hinder patient access to health care. Opposing the new law are the American Hospital Association and the American Medical Association, while faith-based organizations, like the Catholic Health Association, support it. Although the AMA’s guidelines do say that a physician can choose whom to serve in non-emergent situations, they also emphasized that the “responsibility to the patient is paramount.” In a letter to the DHHS last fall, the AMA expressed concern about the wording of the new law, feeling that it was “overly broad and could lead to differing interpretations causing unnecessary confusion and disruption among health care institutions and professionals”, thereby hindering patient access to care.[5] Despite opposition from several prominent professional organizations, the new law went into effect on January 20, 2009. Responding to pressure from the new Obama administration and patient advocacy groups, the new DHHS is currently taking steps to rescind the law.[6]
Since the 1970s, Congress has passed several laws to protect health care entities from perceived discrimination. In 1973 Congress passed the Church Amendments in response to Roe v. Wade. The first amendment stated that any entity that received federal support from the DHHS could not compel employees to perform sterilization or abortion procedures, make their facilities available for such procedures, or provide personnel for such procedures if doing so would be contrary to the entity’s religious beliefs.[4] The second and third amendments outlawed job discrimination on the basis of personal convictions regarding these reproductive matters.
Then came the Public Health Service Act of 1996, which was both more specific and expansive about reproductive rights than the earlier Church Amendments. It explicitly forbade federal, state, and local agencies that received federal funding from discriminating against any health care entity that refused to provide abortion services, training for such services, or referrals for patients to other agencies that did perform those services, and outlawed health care organizations from requiring their physicians from being trained in abortions.[4] Similarly, the Weldon Amendment, a rider on the 2005 appropriations bill for the DHHS, reiterated that no funds from the Department would be provided to an agency if that agency subjected a “health care entity to discrimination on the basis that the health care entity [did] not provide, pay for, provide coverage of, or refer for abortions.”[4]
Against this backdrop of the Medical Conscience Rule, the question remains, is there a place for conscientious objection in medicine? Is it acceptable for a health care provider to deny appropriate and legal medical care to a patient when asked to do so? Critics cite the supremacy of patient autonomy and the professional duty of a physician as reasons to oppose conscientious objection. On the other side, those in favor stress that the morality of the physician is an integral part in the doctor-patient relationship and should not be ignored.
In a controversial article published in 2006, Julian Savulescu, a medical ethicist from Oxford, wrote that the “primary goal of a health service is to protect the health of its recipients.”[7] Furthermore, he wrote that doctors should not be able to “offer partial medical services or partially discharge their obligations to care for their patients” because they are not ready to offer legal and beneficial, but controversial, care. He argues that the personal beliefs and morality of the physician should not enter into medical decision-making. The only thing that matters is what is “best” for the patient as both the patient and the law see fit.
This paradigm is unabashedly absolutist. Critics of his have mentioned that in his reasoning, physicians would be forced to perform procedures or services that they may view as immoral. According to Savulescu, what some of his critics may not fully appreciate is that there is no question of personal morality in this model. To appreciate this, one has to accept a priori several fundamental premises. One, that patients can make reasonable decisions when presented with all the data. Two, that the duty of a physician is to honor a patient’s wishes, if those wishes are within reason. And three, that patient autonomy and the right to guide one’s own medical care are universal truths. Conscientious objection inherently takes the decision-making power away from the patient and places it in the hands of the physician.
The professional duty of the physician is a subject of debate, too. Whereas Savulescu argues that duty is absolute and unwavering, those in favor of conscientious objection feel that duty is malleable and can change depending on the situation at hand.
Proponents of this case-specific model argue that conscientious objection does have a place in medicine and that the individual health care provider can decide what he or she will or will not offer to a patient. The patient’s requests are only one part of the decision-making process, the other part being the will of the health care provider. They contend that every controversial situation should be viewed uniquely and judged on its own singular status. Along these lines, Plato once said that “prudence is not concerned with universals only; it must also take cognizance of particulars.” However, disregard for “universals” can introduce an element of caprice into the health care community which would only create more confusion and inconsistencies.[6]
One potential solution for conscientious objection is the so-called “physician-referral policy”. If a patient requests something that the physician feels uncomfortable providing, the physician can refer the patient to someone else who will honor that request. However, for this system to function, there must be enough providers available to perform those services. If there are not, then patients are needlessly harmed by not having access to appropriate medical care.
The Medical Conscience Rule complicates this policy because it exempts physicians from the requirement of referring patients to other providers. The patient, who relies on the physician for his or her expert advice and referrals to other providers, is left without recourse. Furthermore, the physician referral policy can damage the notion of informed consent. The physician may not present the patient with all the available options, especially if some of those options are not in line with the physician’s beliefs, like abortion or withdrawing life support.[8] Or, the physician may present or withhold the data in such a way as to push the patient towards one course of action that may be more acceptable to the physician but not in the interest of the patient.
Unfortunately, difficult decisions will always arise in the practice of medicine, and when they do, doctors should work with patients to determine the best option specific to that patient and his or her circumstance. We must all remember, patients and doctors together, that no pro-choice physician is pro-abortion, that no doctor is pro-death. But sometimes, physicians must perform certain tasks for the ultimate good of their patient, even if one has to take the plunge and place one’s personal convictions aside.
On a personal note, I believe myself to be a moral and religious man. I use those values to guide my own personal decision-making, but I try to stop short of imposing those rules on another person-including a patient-who may have a very different set of values. Furthermore, I took an oath on the day that I graduated from medical school that obligated me to offer, to the best of my abilities, appropriate, uncompromised medical care without bias. There will certainly be times when I will be faced with a request from a patient or patient’s representative that I will personally find morally difficult, but one that is still legally and ethically acceptable. I hope that those instances are few and far between; when they do arrive, I expect that I will be able to take a step back and fully take on the mantle of the physician and act for the good of my patients, respecting their values as well as medical evidence, never putting my own interests before those of my patients.
Dr. Bradley is a second year resident in internal medicine at NYU Medical Center.
Reviewed by Antonella Surbone MD PhD FACP. Adjunct Professor of Medicine, NYU Medical School and Ethics Section Editor, Clinical Correlations
Coming Soon: A Response and Commentary from Ethics Editor Dr. Surbone
Sources:
1. HB-5006, Michigan Conscientious Objector Policy Act, 2004. Accessed at http://www.legislature.mi.gov/documents/2003-2004/billengrossed/house/htm/2003-HEBH-5006.htm. March 11, 2009.
2. National Women’s Law Center. “Pharmacy Refusals: State Laws, Regulations, and Policies.” Accessed at www.nwlc.org/pdf/pharmacyrefusalpoliciesapril2009.pdf. April 6, 2009.
3. Stout, David. “Medical ‘Conscience Rule’ Is Issued,” New York Times 19 December 2008.
4. Department of Health and Human Services. “Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law”, 45 CFR Part 88. Federal Register, December 19, 2008, Vol 73, no 245, 78071-78101. http://edocket.access.gpo.gov/2008/E8-30134.htm
5. Sorrel, Amy Lynn. “Revised Language in Proposed HHS Rule Still Bolsters Abortion Conscience Laws.” American Medical News 22/29 September 2008.
6. Cantor, Julie D. “Conscientious Objection Gone Awry – Restoring Selfless Professionalism in Medicine.” NEJM 2009; 360;15:1484-1485.
7. Savulescu, Julian. “Conscientious Objection in Medicine.” BMJ 2006;332:294-297.
8. Adams, Karen E. “Moral Diversity Among Physicians and Conscientious Refusal of Care in the Provision of Abortion Services.” J Am Med Womens Assoc 2003;58:223-226.