Hospital leaders need ethical input to determine how to address the controversial “conscience” rule issued by the Department of Health and Human Services (HHS)’ Office for Civil Rights. At press time, its implementation had been delayed to Nov. 22, 2019, amid legal challenges.1,2

“My sense is that there is some uncertainty. Systems haven’t started to make changes based on the new rule, which is still under challenge and won’t be implemented until this fall, if ever,” says Matthew Wynia, MD, MPH, FACP, professor of medicine and director of the University of Colorado Center for Bioethics and Humanities.

The protections afforded to clinicians and organizations under the conscience rule “are, in many ways, just a reiteration and reinforcement of existing rules that have been around for many years,” Wynia notes. The rule lists specific services with which healthcare workers can refuse to help. “It broadens the scope to include, for example, a receptionist saying he won’t schedule an appointment,” Wynia observes. “Hospitals should be thinking about how they might work around this to still provide patient care.”

Kenneth W. Goodman, PhD, FACMI, says, “most hospitals already support conscience rules. They seem to honor clinicians’ legitimate moral qualms.”

Policies can be fairly straightforward in this regard. Some policies simply state that physicians will not be required to do something that conflicts with their beliefs, but are required to find another physician who will. “Cases not about abortion or contraception can be tricky. Ethics committees should be able to address them,” notes Goodman, director of the University of Miami Institute for Bioethics and Health Policy.

Ethics committees can help by revising hospital policies to “make plain that the mere invocation of a faith-based exemption is likely inadequate to the task and intellectually dishonest,” Goodman offers.

The problem, says Goodman, “is that we are apparently entering the age of religious exemptions for all manner of hard-to-understand positions.” A physician or nurse who invokes scripture in support of a refusal to receive an influenza vaccine “is both faking it — precious few faiths actually say that — and willfully endangering patients,” he argues.

Hospitals have long been reluctant to force any individual to do anything that is contrary to his or her personal religious beliefs. “That makes sense. Most of us, as patients, would want our physicians and other health professionals to be acting with personal integrity,” Wynia says.

But sometimes, there is a direct conflict between what is best for a patient (according to the patient) and what the clinician is willing to do based on personal religious beliefs. In such cases, says Wynia, “the clinician has some additional obligations.”

The patient must be made aware of the limitations on what care the clinician is willing to provide. This communication needs to happen far enough in advance of the clinical need that the patient has a reasonable chance to find someone else to provide the service. “It is clearly unethical to hide from patients the fact that you are not willing to provide certain services that the patient might want or need,” Wynia says.

In rare cases, the patient needs a service and the clinician has a moral objection to it, but there is no alternative provider available. The clinician needs to set aside his or her personal belief and do what is medically best for the patient, according to Wynia. “That obligation stems from the core ethical obligation of health professionals to put the needs of the patient over their own needs,” Wynia explains.

Conscience rules are increasingly applied at the level of entire organizations. “This happens a lot because there are lots of religiously affiliated hospitals and health systems,” Wynia explains. “This creates some new ethical dilemmas.”

The central ethical question: What happens when the institution’s “conscience” conflicts with the conscience rights of individual professionals? For instance, a doctor may believe a dilation and curettage is needed to achieve a good medical outcome for a patient. Yet, he or she practices in an organization that forbids performing abortions under any circumstances. “Whose conscience rights should prevail — the hospital’s or the doctor’s?” Wynia asks.

The HHS’ proposed rule seems to suggest that the rights of the organization always should override the rights of the individual health professional in such a case. “But it’s not clear why,” Wynia adds. If it were the other way around (the doctor refused to participate in an abortion, but the organization allows it), then the provider’s rights would take priority, according to the HHS rule.

“In this regard, it seems that the new ‘conscience rule’ is really just a way to advance a particular moral point of view rather than a serious effort to balance competing rights and responsibilities,” Wynia argues.

Ethicists should be particularly attuned to this problematic issue if they work in a healthcare system that does not provide certain services based on institutional religious beliefs.

For example, some hospitals may not allow doctors to prescribe birth control pills for contraception. In that instance, providers carry a particular ethical responsibility. “They need to make sure patients are aware of the restrictions with enough advance notice that they can do something about it,” Wynia advises.

REFERENCES

  1. Federal Register. Protecting statutory conscience rights in health care; Delegations of authority. Available at: http://bit.ly/2WKgnpW. Accessed Sept. 9, 2019.
  2. U.S. Department of Health and Human Services. Conscience and Religious Freedom. Conscience rule effective date moved to Nov. 22, 2019. July 3, 2019. Available at: http://bit.ly/2m0rXwe. Accessed Sept. 9, 2019.