EXECUTIVE SUMMARY

The recent HHS conscience rule sparked ethical debate over the duties providers owe to patients. Proactive responses to this ethically charged development:

  • Hospitals can ensure there is a backup plan to provide services if a clinician claims a conscience objection to a particular treatment.
  • Clinicians can assure patients they will not be discriminated against based on the service they are seeking or their racial or gender identity.
  • Ethicists must balance the rights of providers who have genuine conscience reasons for withholding treatment with the rights of patients to high-quality treatment for all conditions.

The rights of healthcare providers who object to participating in certain services or procedures (such as abortion, sterilization, or assisted suicide) due to religious beliefs or moral convictions were bolstered by a rule released by the Department of Health and Human Services Office for Civil Rights (OCR).1 “This rule ensures that healthcare entities and professionals won’t be bullied out of the healthcare field because they decline to participate in actions that violate their conscience, including the taking of human life. Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it’s the law,” OCR Director Roger Severino said in a written statement.

The HHS rule “is nothing less than a return to paternalism, where the physician has full power over the patient no matter their autonomy or medical need,” says Craig M. Klugman, PhD, a professor in the department of health sciences at DePaul University.

Klugman says the rule “places the physician above the institution or the patient.” Now, healthcare providers are free to refuse to perform any service they find objectionable if they can state a religious or conscience reason for it, says Klugman, even if necessary or desired by the patient and medically indicated.

Klugman says the rule violates healthcare providers’ most important duties: To do no harm, and to put patients’ needs above one’s own. The conscience rule, says Klugman, “tells providers that their own personal beliefs override both of these foundational duties that have existed since the dawn of the medical profession.”

Students admitted to medical school should be asked if they have religious or philosophical objections to any procedures in medical care, Klugman says. “If they do, then that person should not be admitted. This might be a draconian step, but is required if we are to put the patients’ medical needs first,” Klugman notes.

Medical offices or institutions should display signs stating the objections of healthcare providers and what procedures they will not perform, Klugman offers. This way, patients have the information before seeing their medical provider. “If a healthcare provider has objections to performing certain procedures, that person should be moved to a service where those procedures are not offered,” Klugman adds.

Hospitals should create a way to provide necessary medical care in the event that one of their doctors or nurses claims a conscience objection to a particular treatment, says Lawrence Gostin, JD, director of the O’Neill Institute for National and Global Health Law at Georgetown University Law Center. A backup plan for providing services by qualified and willing providers is needed, as is “assuring all patients that they will not be discriminated against based on the service they are seeking or their racial or gender identity,” Gostin says.

Gostin sees an important role for ethicists in educating clinicians about the duties of care they owe to all patients without discrimination. “Ethicists need to fairly balance the rights of providers who have genuine conscience reasons for withholding care with the rights of patients to high-quality treatment for all conditions,” he says.

It is difficult to ascertain whether a health worker has a genuine conscience reason, or is using the conscience rule as a subterfuge for discrimination, Gostin notes. A peer-to-peer assessment, with ethicists able to ask questions of the provider, can be helpful in this regard. “That will influence health workers in exercising their conscience responsibly,” Gostin adds.

Bryan Pilkington, PhD, associate professor in the School of Health and Medical Sciences at Seton Hall University, says the discussion of conscientious healthcare practice is not a new debate. With the HHS rule, it has now been reinvigorated in a highly charged sociopolitical context. “Claims of conscience are often seen as either attacks on vulnerable populations or as violations of a sacredly held, never-to-be-questioned protection of members of a profession,” Pilkington says.

Hospitals can take two steps to ensure that both the conscientious practice of healthcare practitioners and the interests and rights of patients are respected, according to Pilkington:

  • Require practitioners to make known publicly the scope of the practice, including what procedures and treatments they deem beyond their conscientious practice;
  • Request reasons in favor of, or explanations for, their account of the scope of their practice.

“Abandoning patients or refusing to treat populations of patients are not approaches to medical practice that ethicists can support,” Pilkington notes.

However, ethicists also must be careful not to assume there is a single manner in which to practice medicine conscientiously. “One’s conscience, after all, is one’s own,” Pilkington adds.

Some ethicists agree with the HHS that the conscience rule simply supports diversity among healthcare practitioners. “This gives choices to Americans who are looking for practitioners who respect medicine’s historical ethical boundaries, such as the boundary against intentionally harming [patients],” says Farr Curlin, MD, Josiah C. Trent Professor of Medical Humanities in the Trent Center for Bioethics, Humanities, and History of Medicine and the Duke Divinity School at Duke University.

Curlin says that the central ethical question is: Should the profession of medicine remain open to any physicians willing to fully commit themselves to caring for the sick? “This rule essentially says yes, it should, that institutions that receive federal money should be hospitable to practitioners from all of the diverse moral communities that make up America,” Curlin offers.

As for assertions that the rule encourages insidious discrimination, Curlin counters, “Physicians are not objecting to classes of people. They are not refusing to care for gays or transgender patients or anyone else who is sick and in need of healing.” There is an ethical obligation for physicians to have freedom to refuse to cooperate in practices that they believe contradict their profession and harm their patients, Curlin says. This includes sterilization, assisted suicide, abortion, and surgeries to change secondary sex characteristics.

“There are reasonable concerns that the practice in question is not good medicine, or medicine at all,” Curlin adds. It is important for physicians to “rely on their core values in their practice of medicine,” says Cheyn Onarecker, MD, MA, chair of the healthcare ethics council at Trinity International University’s The Center for Bioethics & Human Dignity in Deerfield, IL.

All physicians likely will encounter some procedure or treatment that they would find morally objectionable during their careers. “Some would argue they should plan to set their personal morals aside when they encounter such procedures,” Onarecker says. Some argue that students should even be willing to sign a statement or oath to that effect as a condition of acceptance into medical school.

“However, I don’t think society is ready to accept an entire medical profession made up of men and women who would easily sacrifice their core beliefs in the face of shifting public opinions or when some medical society asserts that a practice or treatment is the standard of care,” Onarecker says.

What is considered standard of care today may be rejected in a decade’s time, Onarecker notes. But if a physician refuses to provide certain healthcare services, it makes it more difficult for patients to obtain access to those services.

“Those with more money could drive to another emergency room or pay for services from another physician. But the poor would not have that luxury,” Onarecker says. Examples include rape victims unable to obtain emergency contraception because a provider invokes the HHS rule, or infertility specialists refusing to treat a lesbian couple. The central ethical question is: Should patients be denied potentially helpful procedures just because a physician finds them distasteful? “It is not always the case that a physician must put a patient’s interests above her own. There has always been a balance between the two,” Onarecker says. It is not feasible to honor every providers’ objection in every situation. “However, we should go a long way to accommodate those rights,” Onarecker adds.

REFERENCE

  1. U.S. Department of Health & Human Services. Protecting Statutory Conscience Rights in Health Care; Delegations of Authority. Available at: http://bit.ly/2X4ImRg. Accessed June 11, 2019.