Should providers have right of conscientious refusal?

The Obama administration acted last year to rescind the so-called "Bush rule" regarding the rights of health care providers related to conscientious refusal. Acting on the administration's direction, the Department of Health and Human Services (HHS) published in the Federal Register the intent to "rescind and study various legal and legislative precedents" related to conscientious refusal.

In the summary published in the Federal Register on March 10, 2009, HHS noted that it "believes it is important to have an opportunity to review this regulation to ensure its consistency with current administration policy and to re-evaluate the necessity for regulations implementing the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment."

According to the background published in the Federal Register, the Church Amendments were "enacted at various times during the 1970s in response to debates over whether receipt of federal funds required the recipients of such funds to perform abortions or sterilizations." They essentially say that any entity that receives federal money cannot require health care providers to perform treatments or interventions that they find morally objectionable; nor can institutions discriminate against health care providers when they choose to decline to provide certain services to which they object on moral or religious grounds.

At the most recent annual conference of the American Society of Bioethics and Humanities (ASBH) held in Washington, DC, a panel discussion presented varying perspectives and information on current research on the topic of conscientious refusal by health care providers.

Survey finds what physicians think

Farr A. Curlin, MD, assistant professor of medicine at the University of Chicago School of Medicine, is the co-author of widely publicized research based on a survey sent to 2,000 U.S. physicians from all specialties. The survey results were published in The New England Journal of Medicine in February 2007.1

As background, the authors wrote, "There is a heated debate about whether health professionals may refuse to provide treatments to which they object on moral grounds. It is important to understand how physicians think about their ethical rights and obligations when such conflicts emerge in clinical practice."1 A total of 1,144 of 1,820 physicians, or 63%, responded to the survey. The procedures in question on the survey included: administering terminal sedation in dying patients, providing abortion for failed contraception, and prescribing birth control to adolescents without parental approval.1

The authors wrote: "On the basis of our results, we estimate that most physicians believe that it is ethically permissible for doctors to explain their moral objections to patients (63%). Most also believe that physicians are obligated to present all options (86%) and to refer the patient to another clinician who does not object to the requested procedure (71%)."1

According to the authors, "Physicians who were male, those who were religious, and those who had personal objections to morally controversial clinical practices were less likely to report that doctors must disclose information about or refer patients for medical procedures to which the physician objected on moral grounds."

While most of the physicians in the survey reported that it is ethically permissible to object, as well as to describe the objection to the patient, most respondents indicated they also were obligated to inform and refer. "However, the number of physicians who disagreed with or were undecided about these majority opinions was not trivial. If physicians' ideas translate into their practices, then 14% of patients — more than 40 million Americans — may be cared for by physicians who do not believe they are obligated to disclose information about medically available treatments they consider objectionable," the study authors wrote. "In addition, 29% of patients — or nearly 100 million Americans — may be cared for by physicians who do not believe they have an obligation to refer the patient to another provider for such treatments."

The authors noted that the findings of the study "may be important primarily for patients."

A perspective in favor

Curlin suggests that the Obama administration, in rescinding the Bush rule on conscientious refusals, "wanted to keep it at the status quo, which was that there remain these federal laws that prohibit discrimination based on a refusal to participate in something to which doctors, or rather health care providers, have a religious or other fundamental moral objection."

And while it might be federal law to allow conscientious refusal, Curlin notes that "there are reports of that not being the case in different places. But I think for the most part, there's a long tradition within the profession of accommodating conscientious refusals."

Curlin says from its earliest days, the profession of medicine "in its ethical codes has said that doctors are not required to do things that in their judgment are not a part of their obligated medical care, and that they do not think are in the best interests of the patient."

Speaking before The President's Council on Bioethics in 2008, Curlin presented his argument: "that if you do away with conscientious refusal, you, in effect, turn the profession of medicine on its head in a way that people are not fully recognizing, because they are only thinking about the conscientious refusals of other people, the people with whom they disagree, rather than imagining themselves in a situation in which they are asked to do something that they think is wrong."

Curlin says he thinks it is entirely appropriate that health care providers have the ability to refuse to provide services they find morally objectionable, although he notes that it is "conventional wisdom" taught in medical school that physicians, at least, also must inform and refer in such instances. "I think it's absolutely essential," Curlin says. "You cannot have a profession of medicine without that — that is, a profession. You can have people who are technicians, who provide [services], but you can't have doctors thinking about what's best for their patients and being committed to it, unless you allow them to not do things that they don't think are best for their patients. There's no way to have both."

However, also in his remarks before the President's Council, Curlin suggested that not every conscientious refusal is justified. "A conscience that is malformed or misinformed will err," he said. For example, he said, "a conscientious physician may fail in his duties to relieve a patient's debilitating pain because he has not been trained to pay close attention to and work hard to address pain. Alternatively, he may fail because he incorrectly interprets the patient's behavior as drug-seeking and malingering.

"The conscience as a human faculty is both limited and fallible. Yet, however fallible, conscientious refusals are, I think, a logical and necessary consequence of physicians exercising discernment or clinical judgment. It has long been recognized that medical decisions cannot be reduced to doing what patients want or even to clinical algorithms, rules of thumb, and scientific data."

A different view

Joel Wu, JD, MPH, MA, research fellow, program in professionalism and bioethics, College of Medicine, the Mayo Clinic in Rochester, MN, also a panelist at the ASBH annual conference on this topic, says that while "Dr. Curlin's position is to expand or extend a very broad right of conscience for health care providers," Wu's own view was "to consider limiting it in some ways."

Wu said "within liberal constitutional society, we have to really find a careful way to balance the rights of the general public and the patients with the conscience rights of health care providers, especially given the particular set of powers and skills that health care providers hold as a class."

The "concept" that Wu says he brought to the conference was his thought and argument that "in a society where we value the concept of martyrdom, and we might value the concepts and the political histories of civil disobedience, might there be a reason for health care providers to purposefully tolerate a penalty for their refusal to do something they find morally objectionable?"

While it is, Wu says, a "difficult balance," he is not asking for doctors to "purposefully seek out penalty to prove a point."

"What I'm asking is for people to consider situations where they find something so morally objectionable, but at the same time, there's a societal need for people to provide or at least to make that type of action or that type of medical service available or at least inform people of it — whether they are going to be willing to, for the sake of their own conscience and possibly to prove a point, to tolerate a penalty as opposed to shifting the burden onto the public and the patient."

Wu suggests that the fundamental question really boils down to "the balance of the interests and the liberties of patients, and the interests and the liberties of the health care provider."

"We live in a liberal constitutional society," Wu says. "What that really means is that the seat of moral authority resides in the individual, so you want to maximize that. The problem is that health care providers have some special powers, and they probably also have to have some special obligations and responsibilities."

Physicians have such special powers "by virtue of licensing and by virtue of their skills," Wu says.

He describes physicians as legally "the only people who have the skills and power to provide medical care, and the general public has to go to these people to get medical care." Accordingly, this also gives physicians the power potentially to "restrict or limit the liberties of the general public, because if they start to refuse to inform and educate, or if they refuse to provide those medical and legally relevant medical services to the public, then the public's liberties are constrained just by virtue of their lack of power and their lack of skills and expertise," Wu says.

Therefore, the role of the government is to balance these interests, he says, without "overly burdening the conscience of the provider."

Wu believes physicians should be willing to inform the patient regarding "relevant and legal" medical services, "even though the physician or the health care provider might find that particular option to be morally objectionable."

Particularly rural areas and their citizens might be unduly burdened if, for example, the sole health care provider in that community refused to provide certain services, Wu notes.

Reference

1. Curlin FA, Lawrence RE, Chin MH, et al. Religion, conscience, and controversial clinical practices. N Eng J Med 2007; 356:593-600.