Doctors weigh morals, ethics in decisions on refusing services

Do physicians have the right to refuse to offer types of care that conflict with their beliefs?

By — Posted July 13, 2009.

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Must physicians arrange their professional responsibilities so that no conflicts arise between their personal religious beliefs and services they are asked to perform, or should society allow physicians to refuse to provide specific services for reasons of conscience?

Reply: The right of conscience is the right of an individual to refuse to do something requested by another based on his or her own conscience or religious beliefs. This right, a long-recognized religious tenet, began to gain credence in secular circles during the Enlightenment and was clearly articulated in America by Thomas Paine, Thomas Jefferson and James Madison.

The right of conscience in medicine generated very little discussion prior to the current generation. In the 1960s and '70s, individual autonomy expanded and became dominant in Western medicine. Patients rightly confronted paternalistic physicians and demanded greater say in their medical care. Only in this autonomy-focused setting has the physician's right of conscience become an issue.

The concomitant legalization of abortion, which had been morally and legally forbidden for centuries, brought the issue into sharp focus. Can a physician who still considers abortion to be immoral be forced to participate in or assist the patient in obtaining this procedure? In broader terms, does a physician have the right to refuse to provide or assist in any way in the provision of a particular service based on religious beliefs?

Most often raised in relation to abortion, the question is also a factor in other areas of obstetrics and gynecology (sterilization, contraception, assisted reproductive technology) and in other medical disciplines (end-of-life care). It is beginning to be a concern in jurisdictions where physician-assisted suicide has been legalized.

With the long history of unquestioned right of conscience for physicians, it is not surprising that the response to this question has been uniform and broad. The medical right of conscience has been codified in U.S. medicine, federal law, state laws, international law and international medicine. Some of these policies or laws, however, carve out exceptions in cases of emergency and include provisions that require the dissenting physician to refer patients to another who is willing to deliver the service.

Such articulations of less-than-clear boundaries broaden the question from "doing" the procedure one considers immoral to assisting directly, assisting indirectly or referral of patients. One physician may be unwilling to perform an abortion but willing to refer, while another may be unwilling to refer, believing that doing so would make him or her complicit in an immoral act. One physician may be unwilling to write a lethal prescription but willing to refer to someone who will; another may be unwilling to make such a referral because of moral complicity.

Support for the physician's right of conscience has not been universal. Some maintain that physicians who refuse to provide all legal services should have their professional licenses revoked. Opponents voice two reasons for objection: Doctors no longer have extraordinary privileges because of the prominence accorded to patient autonomy; and doctors have the duty to provide all legal services.

Those who oppose a physician's right to exercise his or her conscience in decision-making use flawed reasoning in several areas:

  • Opponents maintain that patient autonomy is the final arbiter of treatment decisions. There are clearly times when patient autonomy is not the determining factor, such as imposed immunizations, imposed quarantine, imposition of life-saving treatment when a patient has made an irrational refusal of treatment, and prevention of suicide.
  • Opponents assert that licensed physicians are obligated to provide any service that is legal. Acceptance of this flawed precept would require a physician to provide or facilitate each patient request for a legally available service, e.g., every Oregon physician would be required to assist a dying patient with a request for physician-assisted suicide.
  • Opponents erroneously maintain that negative patient autonomy (the right to refuse a recommended treatment) and positive patient autonomy (the right to demand a treatment) are morally equivalent. It is a well-established tenet of medicine that the patient's right to refuse is nearly inviolable, but a patient's right to demand a specific treatment is subject to physician discretion and veto. Were this not so, patients could demand unnecessary surgery as well as prescriptions for antibiotics or narcotics.
  • Opponents assume that matters of conscience for the professional are matters of personal opinion rather than matters of divine or ecclesiastical authority. For a physician to acquiesce to a patient request for a lethal prescription is not a personal opinion. It would be a violation of most people's understanding of the basic tenets of all three monotheistic faith traditions.

It has been assumed for centuries that physicians are moral agents who have the right to refuse to provide requested services that conflict with their religious or moral beliefs. This assumption is being challenged. This ancient right should be defended by all of society.

Robert D. Orr, MD, professor of bioethics, Union Graduate College-Mount Sinai School of Medicine bioethics program, New York

Reply: Doctors are not alone in their susceptibility to conflicts between the demands of personal morality and the obligations of professional ethics. The problem can arise wherever there are "normatively rich social roles" allowing entry by individuals coming from a range of cultural backgrounds. A role is normatively rich when it is defined, in part, by a systematic commitment to certain social goods. Think of how roles like parent, teacher, accountant, judge, minister and firefighter are all defined, in part, by certain demands that are built into the role itself. A good parent is supposed to care for his or her child, and so on.

When roles are organized as professions (medicine, law, pharmacy, nursing, early childhood education, etc.) these commitments can be defined by a professional society. A formal professional code generally characterizes practitioners' obligations to clients, to third parties, to employers and to society itself. In mature professions like medicine, the collectivity of doctors enjoys a monopoly on the delivery of certain essential services: a "stewardship." Society grants these privileges out of an expectation that doctors will take their obligations seriously. So understood, sound principles of professional ethics are those that, when honored by practitioners, have the effect of collectively discharging the code-defined responsibilities the field has assumed in the political process of professionalization. If the medical profession compromises its essential trustworthiness, society should seek an alternative method of organizing health care, one that does not require the same reliance on professionalized doctors.

In medicine, there are many opportunities for a practitioner's pre-professional morality to conflict with professional obligations. What should one do when the demands of one's faith conflict with the duties of one's profession?

Take, for example, the familiar religious prohibition on blood transfusions, a critical part of the morality of Jehovah's Witnesses. While we are generally used to thinking of Witnesses who refuse blood as patients, it is less well-known that Jehovah's Witness doctors are prohibited from administering transfusions, even to patients who are non-Witnesses, and even if the blood is needed to save the patient's life.

To my knowledge, no one defends a Jehovah's Witness doctor's right to refuse, on the basis of conscience, to administer blood to an exsanguinating non-Witness patient. Among the Witness doctors I have questioned, the consensus is to avoid being alone and on duty in any setting where patients needing transfusions might present. If necessary, they would summon another health care professional to do the procedure.

It is not difficult to identify similar medical conflicts. Some Orthodox Jewish intensivists may not disconnect ventilators after death by neurological criteria. Some Catholic ob-gyns may have difficulty with ectopic pregnancies. Unlike Jehovah's Witness doctors, they may be subject to a prohibition against referring patients to an ob-gyn who does not share their scruples.

A potentially conflicted clinician can structure professional responsibilities to avoid the possibility of having to choose between being a very bad doctor and being a very bad Jehovah's Witness or Jew or Catholic, etc. Once the dilemma is in your lap, there is no solution. The best strategy is to arrange your professional responsibilities beforehand, so that such a problem can never arise. If you are firmly opposed to abortion, you can avoid employment in abortion clinics, or specialize in dermatology, or even refrain from becoming a doctor.

A related strategy applies to a version of the problem that can arise for administrators. It is plainly wrong to assign a responsibility to a doctor who is conscientiously opposed to carrying it out. A decision to employ such a health care professional, one who is subject to such limitations, might depend on the skill set of the employee and on the flexibility of the organization. But where the demands of personal morality prevent an otherwise qualified prospective employee from performing critical tasks, there can be no eligibility for the position.

Finally, something should be said about the transitional problems that arise when a prohibited practice becomes clinically mandated. Consider, for example, that the professional obligation to dispense prescribed abortifacients cannot arise until such pharmaceuticals are made available. Suppose a senior health care professional who has always opposed such drugs had entered the medical profession at a time when their use was not anticipated. Should she be granted some accommodation? I think so, but not at the cost of the patient's ability to obtain an indicated drug. The privileges attaching to the role of the health care professional -- prescriptive authority in this case -- are not intended to allow the physician to impose a personal morality. Respect for the religious liberty of doctors should not come at the expense of the profession's patients.

Ken Kipnis, PhD, Dept. of Philosophy, University of Hawaii at Manoa

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