Do Medical "Conscience Clauses" Mean Being Unconscious to Patient Care?
"Conscience Clauses" either proposed or actually written into governmental legislation of medical practice have stirred controversy on both sides of the issue. A "conscience clause" would permit physicians freedom from any legal retribution, discipline or discrimination to reject performing or otherwise carrying out an action or service which would go against the physician's "conscience", conscience being the physician's belief of right vs wrong, good vs bad based on the physician's own ethical or religious principles as applied to the patient care. In rejecting, the physician may be required to attempt to refer the patient to another physician who would agree to perform the service. On the other hand, this responsibility may not be required since some might find such a referral to be facilitating an act which was already deemed suspect. It should be noted that the "conscience clause" is supported by the First Amendment to the U.S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.." Apparently the Amendment applies to physicians and other medical care providers as well as their patients.
An example of a "conscience clause" written into a United States state law, which is one about which I am familiar, is that of the California Probate Code.Within the California state Probate Code is the following:
"4734. (a) A health care provider may decline to comply with an
individual health care instruction or health care decision for
reasons of conscience.
(b) A health care institution may decline to comply with an
individual health care instruction or health care decision if the
instruction or decision is contrary to a policy of the institution
that is expressly based on reasons of conscience and if the policy
was timely communicated to the patient or to a person then authorized
to make health care decisions for the patient."
If the provider or institution declines, then:
"4736. A health care provider or health care institution that
declines to comply with an individual health care instruction or
health care decision shall do all of the following:
(a) Promptly so inform the patient, if possible, and any person
then authorized to make health care decisions for the patient.
(b) Unless the patient or person then authorized to make health
care decisions for the patient refuses assistance, immediately make
all reasonable efforts to assist in the transfer of the patient to
another health care provider or institution that is willing to comply
with the instruction or decision.
(c) Provide continuing care to the patient until a transfer can be
accomplished or until it appears that a transfer cannot be
accomplished."
The "conscience clause" may be applied to legislation that could deal with various aspects of medical care but is more often related to issues of reproduction such as sterilization,abortion,contraception and stem cell procurement and use.
But the issue I want to discuss here is with regard to what is the impact of the "conscience clause" on the professional duties of physicians and other providers in the medical system. Should we look at it as an impediment, within the law, to proper patient care? Irrespective of the permission of the "clause", should physicians, nevertheless, divest themselves of their personal moral decisions when they take on
professional responsibilities? Should responsibilities be only directed toward attending to the request and the best care of the needy patient and not, in some circumstances, directed toward the caregiver themselves? And what do you think about physicians or other healthcare providers who find situations where, to maintain
self-directed responsibilities and conscience intact, the duty even to transfer the patient to another provider who would follow the patient's request is unacceptable?
If you are a doctor how would you look at the permission offered by the "conscience clauses"? If you disagreed with the patient's request because of your moral or religious values, would you reject the request? ..Maurice.
Graphic: From Google Images modified by me with ArtRage and Picasa3
posted by Maurice Bernstein, M.D. @ 7:03:00 PM
6 comments
6 Comments:
While I support the right of doctors and indeed all medical professionals to believe and practice whatever religion they so choose, conscience clauses, in practice, are almost invariably used to limit healthcare decisions of those who are already disadvantaged, notably women and the terminally ill. It seems to me that medical professionals do have a duty of care: care to choose a specialty where their conscience will not be an issue (for example pharmacists who have any problem with any kind of medication are probably in the wrong field, as would be certain religious groups if they elected to work on a farm where caring for pigs was part of the job). Beyond that, especially in instances of life or death the life of the living breathing patient in front of them should be legally mandated to take precedence, and in all other matters professionals should be obliged to refer patients to someone who can provide necessary care. I have no time for anyone who believes that their religion should impose the same dictaes on others, and conscience clauses without referral for matters that are an expected part of the job are exactly that.
--PD
With regard to pharmacists' conscience clauses which protect pharmacists from refusing to dispense contraceptives or pills which may be considered abortifacient, where are conscience clauses which protect pharmacists from their dispensing of these products or even giving contraceptive advice? Could a pharmacy owner whose pharmacy did not carry contraceptives demote or fire the pharmacist for providing the customer with such advice? Is there a conscience clause to protect that pharmacist? Probably, it should be the same clause that protects the refuser along with wrongful termination laws. ..Maurice.
Talk about a slippery slope. So maybe then it'd be ok for a provider who doesn't believe in blood transfusions to deny one to a patient? Who then dies before they can get referred to someone that will give them one? Sure, that's an extreme example, but sounds to me like that clause would allow it.
As the previous poster said, people whose profession might 'require' them to do something that is legal, yet against their beliefs, are in the wrong profession.
TAM
In 2005 the issue of pharmacists refusing to fill the "morning after" Plan B pill as a conscientious objector (CO) was getting news media attention along with the states beginning to incorporate laws permitting the objections. I created a thread April 22 2005 regarding this topic and presented two views of ethicists from an ethics listserv. I have copied their statements here in two postings. This is the first. ..Maurice.
The View For CO Clauses
“Is there to be no room for conscience-clauses within a profession? Can those occupying
the minority position be granted no latitude? My own sense is that
conscience-clauses come along with pluralism and disagreements resolved by
a majority while giving minorities some room to hold to the view that the
profession itself does not embrace. Conscientious objector status is the
majority's concession to the minority opinion. As such, it comes along
with a recognition that we differ over what is ethical. When a people
realize that they differ over their view of the good, they can agree that
while the majority's view of the good will prevail, others will not be
coerced to follow it in those respects that they find it objectionable. To
the extent to which our times are marked by disagreement, I would think
that CO clauses would abound.”
The View Against CO Clauses
“I don't think there is room for CO clauses for pharmacists that would allow
them to abstain from implementing classes of prescription. In rega to
medicines, I think physicians have a duty not to prescribe poisons and the
like or to prescribe narcotics without a proper license, and a duty to do
the best job technical job they can with prescription choices, taking into
account side effects. For their part, pharmacists have a general duty to
implement the prescriptions presented to them accurately. Within that
general duty, pharmacists also have a duty to apply their particular
knowledge about drug dosages by age and weight and drug interactions (based
on knowledge of all the drugs being taken) and get back to physicians about
possible prescription changes needed for efficacy reasons, and to respond
to queries from patients to the best of their knowledge. I don't think it
rises to a duty but it is certainly a good characteristic of pharmacists if
they take the trouble to suggest generic drugs to the physicians when that
would result in lower consumer prices or copays. Allowing pharmacists to
make CO objections to types of legally prescribed medications opens a
Pandora's box and interferes with these desired roles: what if the
pharmacist's religious beliefs suggested that pain should be fully
experienced, for example, and therefore they should abstain from filling
certain pain prescriptions? What if their beliefs compelled or prohibited
uses of various types of psychoactive drugs? What if the pharmacist
believes in so-called "natural" classes of drugs to the exclusion of
others? Will we need a procedure for determining whether the pharmacist's
beliefs, as with those of military COs, come from a properly established
religion or just a strongly held belief, and will this matter? What kind
of disclosure of their own beliefs must the pharmacist give the patient,
and when? Must they be posted on the pharmacy wall, giving at least some
consumers a chance to take their business to pharmacies that leave their
subjective morality behind. And do we have time for all these processes to
play out? If pharmacists can introduce their own moral filter that
includes information about the patient's marital status and social behavior
(e.g. no contraceptives for unmarried individuals), it implies at best that
dispensing pharmacists have a relationship with patients and their complete
social history in ways that cannot be assured. … I think
pharmacists who cannot or will not fulfill legal drug prescriptions because
of their own particular moral objections to a class of meds or to use of
certain meds in certain social circumstances (as opposed to technical
grounds of objection to what seem to be prescribing errors of too little,
too much, or the wrong med) should get a new occupation. Further, it seems
to me that condoning pharmacists in their adding a subjective moral filter
to prohibit certain prescriptions will undercut all efforts to see the
pharmacist as a health team member whose technical expertise about
pharmaceuticals should be expressed to and heeded by physicians. I have
always been a staunch advocate that pharmacists should raise objections to
a prescription that seems wrong to them and have wanted to elevate the
status of pharmacist at the true medication expert.”
Starting early: Here is the American Medical Association's view of "conscience clauses" for medical students. ..Maurice.
https://ssl3.ama-assn.org/apps/ecomm/PolicyFinderForm.pl?site=www.ama-assn.org&uri=/ama1/pub/upload/mm/PolicyFinder/policyfiles/HnE/H-295.896.HTM
H-295.896 Conscience Clause: Final Report
Principles to guide exemption of medical students from activities based on conscience include the following:
{1) Medical schools should address the various types of conflicts that could arise between a physician’s individual conscience and patient wishes or health care institution policies as part of regular curricular discussions of ethical and professional issues. (2) Medical schools should have mechanisms in place that permit students to be excused from activities that violate the students’ religious or ethical beliefs. Schools should define and regularly review what general types of activities a student may exempt as a matter of conscience, and what curricular alternatives are required for students who exempt each type of activity. (3) Prospective students should be informed prior to matriculation of the school’s policies related to exemption from activities based on conscience. (4) There should be formal written policies that govern the granting of an exemption, including the procedures to obtain an exemption and the mechanism to deal with matters of conscience that are not covered in formal policies. (5) Policies related to exemption based on conscience should be applied consistently. (6) Students should be required to learn the basic content or principles underlying procedures or activities that they exempt. Any exceptions to this principle should be explicitly described by the school. (7) Patient care should not be compromised in permitting students to be excused from participating in a given activity. (CME Rep .9, I-98; Reaffirmed: CEJA Rep. 11, A-08)
And this Final Report:
http://www.consciencelaws.org/background/policy/associations-006.aspx
The AMA has set out seven principles to guide exemption of medical students from activities to which they object for reasons of conscience. The Association recommends that discussion about conflicts of conscience be part of the regular curriculum, that medical schools establish procedures to allow students to be exempted from activities for religious or ethical reasons, and that students be apprised of the policies.
It is further suggested that medical schools "define . . . what general types of activities" may be the subject of conscientious objection, a potentially problematic aspect of the policy. Other problems may arise in interpreting the section that requires students to learn the "basic content" of the activity in question, or in applying the seventh principle that "patient care" should not be "compromised." Those who consider procedures like abortion, contraception or contraceptive sterilization to be legitimate forms of "patient care" are likely to apply the principle very differently from those who do not.
However, the attempt to deal with this issue and accommodate conscientious objection is commendable, and one hopes that good faith shown by students and administration will overcome difficulties that may arise in the application of the principles.
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