White Coat Underground

Sometimes I feel like I’m pounding my head against a wall. I’ve been wondering why the issue of so-called conscience clauses just won’t die, why otherwise intelligent people can’t just agree with me just don’t get it.

Quick review: some health care professionals wish to be able to deny patients certain types of care, and want to be protected by law for imposing their own morals on others, in violation of basic medical ethics and human dignity (as you can see, I don’t have a strong opinion about this one).

Ethical behavior is difficult. It requires empathy—but in a very particular sense. It requires someone to be able to see things through someone else’s eyes, to imagine the same events from more than one perspective. Ethics aren’t a blunt object used to impose your will; they are a tool to help elucidate the differences between choices, and to solve problems. Ethics, in short, requires a good imagination.

Some of the arguments that people in favor of conscience clauses provide are based on a fundamental misunderstanding of ethics.

A health care provider is not required to provide any service to any person. She has the right to choose whom to serve and how. Within limits.

For example, in the AMA code of ethics, one of the principles says:

A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.

Remember, ethics provide for the dignity of both persons in a relationship. A physician can’t be forced into any relationship…BUT if a physician chooses to deny care to someone, there better be a good reason, and the dignity of a patient must still be respected. So, for example, when a patient calls my office, but I don’t participate in their insurance, my secretary informs them of the problem and offers them the numbers of other practitioners. If the same patient comes to see me, and I don’t properly check their insurance status, it’s too late—I have a deeper ethical obligation, and I need a stronger reason to deny them care. In this case, the reason is that it will cost both me and the patient monetarily to continue the relationship, and we will probably choose together to end it. Ethics is a shared tool, and ethical decisions involve all parties.

Given that ethics provide for the dignity of both people in a relationship, what should we do when a decision appears to inevitably cause a conflict between the needs of both?

This is when we must look at what other duties are implied by the relationship. As a physician I have a responsibility to provide the standard of care to my patients, as far as I am able. If a patient has appendicitis, the standard of care is not for me to remove the appendix, as I’m not competent to do that. The standard of care if for me to send them to the emergency room. If a patient comes to me for contraception, well, I’m competent to provide it, and its provision meets the standard of care. What if I’m morally opposed to it? Personally, I find that abhorrent, but a not-so-horrible second choice is to explain to the patient your general lack of competence in the area (they don’t need to know that your incompetence is due to religious beliefs), and to give them a realistic and timely referral.

Let’s be clear here: we are talking about “standard of care”, not medical necessity. One of my commenters believes that providers (pharmacists in particular) are not required to provide services that are not medically necessary. This is a fundamental misunderstanding. “Medical necessity” is a financial, not medical, concept. An insurance company determines what is “medically necessary” in order to decide what they will or will not pay for. Often enough, what an insurer thinks is not medically necessary is still vital to the patient.

Ethics is hard. It requires imaging a world without you in it, or at least one in which your needs are not paramount. It requires a very “grown-up” perspective. If you can’t behave like a grown up, you shouldn’t be playing with people’s health.

Comments

  1. #1 bob koepp
    January 25, 2009

    “Let’s be clear here: we are talking about “standard of care”, not medical necessity. One of my commenters believes that providers (pharmacists in particular) are not required to provide services that are not medically necessary. This is a fundamental misunderstanding. “Medical necessity” is a financial, not medical, concept. An insurance company determines what is “medically necessary” in order to decide what they will or will not pay for. Often enough, what an insurer thinks is not medically necessary is still vital to the patient.”

    This is a cop-out — playing games with words. The concept of ‘medical indications’ has a long and storied history in medicine that predates any involvement with insurance companies.

    And you’re still conflating refusing to provide assistance with imposing one’s will — basic medical ethics, indeed. We can agree that ethics is hard. Try harder.

  2. #2 Orac
    January 25, 2009

    And you’re still conflating refusing to provide assistance with imposing one’s will — basic medical ethics, indeed

    In many cases, refusing to provide assistance IS imposing one’s will, particularly in areas with few options, and in particular in cases of physicians and pharmacists who refuse to provide certain kinds of care but refuse to refer to someone else who does.

    Bottom line: If your religion or morals don’t let you do what’s considered legal and moral by the vast majority of the medical profession, then you don’t belong in the medical profession.

  3. #3 bob koepp
    January 25, 2009

    Orac – Nobody’s denying that refusing to provide assistance and imposing one’s will can have the same end result. That doesn’t undermine the ethical and legal distinction. As for your bottom line, do you propose that this standard be adopted prospectively, or do you think it should be applied retrospectively, and that the licenses of a large number of MDs should be pulled?

  4. #4 Casz
    January 25, 2009

    I have to agree with Orac and PalMD. Surely in the US you must go through a lot of training to become a medical professional and through that training you learn of what care you are expected to provide as a professional (ie don’t want to do provide birth control or abortions, do not go into Women’s Health). Truly if you cannot provide that care then you should not be in that field.

    Same with pharmacists – if you do not want to fill all prescriptions then work in a non-dispensing field. If your ethical values are so strong that they would make you refuse to do part of your job they should have led you to an area of employ where your ethics are not used to control others. Otherwise you’re just willing to slough off your ethical obligation on others.

    I don’t think this is new – haven’t professional associations always demanded this level of commitment? What’s new is the whining of people who entered the field expecting to proselytize through their job.

  5. #5 bob koepp
    January 25, 2009

    Casz – The question is what falls under the rubric ‘care one is expected to provide as a professional.’ I don’t have actual statistics handy, but a lot of OBGs in the US provide what are called therapeutic abortions (basically, abortions that are medically indicated), but will not provide elective abortions. Granted, Pal thinks they don’t know the difference between medicine and finance, but then, I’m still waiting for him to substantiate his claim that abortions and contraceptives are almost always medically indicated.

    The reason I keep bringing up the notion of medical indications is because I think it’s relevant to the delineation of the professionally grounded obligations of healthcare professionals. I’m willing to take seriously claims that professional obligations must trump freedom of conscience, but that requires an equally serious account of such professional obligations. And I think that the notion of ‘medical indications’ should be seen as a constraint on the scope of the professional obligations assumed by healthcare professionals.

  6. #6 Casz
    January 25, 2009

    Bob – From a patient’s (i.e. mine) perspective medically indicated has no bearing on the situation. There are services only certain people are allowed to legally provide, abortions and contraception being two of them. That being the case, the role of the doctor should be to ensure I am aware of the risks and makes the best decision for my situation (without undue pressure from others) and that I am physically/mentally capable of surviving the decision. The role of the pharmacist is to let the doctor know if I am on contra-indicated medication and, if not, fill prescriptions.

    If someone feels they cannot at minimum refer me to someone who can do this, then they should remove themselves from that area of practice NOT expect rules to change for them.

  7. #7 Lora
    January 25, 2009

    So bob, out of curiosity, if abortion and birth control were somehow, hypothetically, made so safe that it could be sold OTC out of a vending machine, that would be peachy-keen with you because no human other than the one buying the stuff would be involved?

  8. #8 zy
    January 25, 2009

    If contraception could be sold out of a vending machine, we would see scores of religious conservatives going into the vending machine service/repair business and then claiming their “conscience” (ha!) dictated they refuse to perform their jobs.

  9. #9 D. C. Sessions
    January 25, 2009

    What these “conscience clauses” do, no matter how you weasel around the matter, is give legal cover for patient abandonment.

    Consider Dr. Doom, who stops at a bad highway wreck. Finding the victim trapped in the vehicle with an arterial bleed from an open fracture of the left arm, our intrepid physician does what anyone should know to do: apply direct pressure to stop the bleeding. While maintaining pressure and in light of the prospect that the patient might lose consciousness, he starts taking an oral HX. In the course of taking the history, he discovers that the patient is 72 years old.

    This is a problem. Dr. Doom’s sect takes the Biblical “three score and ten” very seriously indeed, and considers any attempt to live beyond that age an abomination.

    So Dr. Doom shakes his head and walks away. Shortly afterward (and well before anyone else arrives on the scene) the victim goes into hypovolemic shock, suffers cardiac arrest, and dies.

    Barring a “conscience clause” Dr. Doom would be legally liable for a preventable death. Does anyone approve of giving him a “get out of jail free” card?

  10. #10 bob koepp
    January 25, 2009

    Lora – Yes, you are getting my drift. In fact, we can set hypotheticals aside when considering emergency contraception in the form of Plan B. The FDA’s scientific advisors recommended that Plan B be made available “over the counter” — meaning it could, indeed, be dispensed by vending machines, just like condoms. However, just like condoms, it would, I believe, become available in your neighborhood convenience store in very short order. Unfortunately, the “decision makers” (i.e., politicos) at the FDA declined to implement that recommendation, so women in the US still need to go to a pharmacy to get Plan B.

    The situation with non-emergency contraceptives is only slightly more hypothetical. Based on the safety profiles of most chemical contraceptives, I think they would also meet the standard that the FDA is supposed to apply; namely, they can be safely and effectively self-administered. (I’m also informed that chemical contraceptives are readily available OTC in some European countries, but I haven’t verified this.)

    It’s worth noting, too, that the FDA only reviewed Plan B because the company that owns the patent applied for OTC status. In contrast, companies with the patents for non-emergency contraceptives have not applied for OTC status. This difference is understandable in light of the different market characteristics of emergency and non-emergency contraceptives. The former would be more profitable if access was eased. The latter has more profit potential if access remains restricted. So as I see it, the profit motive poses a greater obstable to freedom of choice than do pharmacists with strange moral beliefs.

    Induced abortion is more problematic, at least until safe, effective chemical abortifacients are developed. And even then, they would probably only be used for very early term abortions, with later abortions still requiring medical supervision. Still, in the interest of promoting reproductive choice, I’d like to see significantly more efforts directed to developing OTC abortifacients. And for those later term abortions, where urgency is a much less signficant factor, I think that with proper social supports women would be able to find providers who don’t have moral objections to abortion.

    So you see, I’m not anti-choice at all. Quite the contrary. But I disagree vehemently with those who think that in order to foster reproductive choice you have to oppose freedom of conscience. That’s a false dilemma.

  11. #11 PalMD
    January 25, 2009

    No, it is not a false dilemma. As the less blinded commenters have pointed out, there are plenty of interventions that cannot be given OTC, so your thinking is still terribly muddled by your own freakish ideology.

  12. #12 bob koepp
    January 25, 2009

    Pal – OK, your blind, muddled, freakish efforts to insult aside, nobody has claimed that OTC is a magic bullet that eliminates all moral conflicts in healthcare. False dilemma.

  13. #13 DrBadger
    January 25, 2009

    If contraception could be sold out of a vending machine, we would see scores of religious conservatives going into the vending machine service/repair business and then claiming their “conscience” (ha!) dictated they refuse to perform their jobs.

    Well said zy. Whatever the ethical debate may be, the motivation behind this is to limit access to abortions (or what people think causes abortions). I wonder if the pro-conscience clause people would be against a muslim denying their patients food during Ramadan (let’s say there’s no danger that to their health, they’ll just be hungry for most of the day).

  14. #14 Ames
    January 26, 2009

    Welcome to your new home :). Forgot to welcome you a while ago…

  15. #15 Dianne
    January 26, 2009

    a lot of OBGs in the US provide what are called therapeutic abortions (basically, abortions that are medically indicated), but will not provide elective abortions.

    If an ob/gyn does not wish to provide abortions as part of his/her service then he/she is not required to. However, if a patient comes to him/her desiring pregnancy termination then s/he is required to tell the patient that abortion is not part of his/her practice and refer the patient to another practitioner who does provide abortion. Simply saying, “worry, I don’t do that procedure” is inadequate.

  16. #16 D. C. Sessions
    January 26, 2009

    If an ob/gyn does not wish to provide abortions as part of his/her service then he/she is not required to. However, if a patient comes to him/her desiring pregnancy termination then s/he is required to tell the patient that abortion is not part of his/her practice and refer the patient to another practitioner who does provide abortion. Simply saying, “worry, I don’t do that procedure” is inadequate.

    And all the more so for scheduling the procedure, throwing in delays, etc. and then developing cold feet at the last minute.

    One of the poster-child cases for “conscience clauses” was a California fertility specialist who put a patient through literally years of preliminaries and then left her in the lurch just prior to IVF because said patient was a lesbian. The patient had to start all over again at a different clinic, with her biological clock ticking the whole time.

    I’ll repeat: these laws/regulations are just legal cover for patient abandonment.

  17. #17 bob koepp
    January 26, 2009

    D C Sessions – Just because somebody says they are refusing to provide a service because of a conflict with their conscience doesn’t mean that they’ve interpreted “conscience clauses” correctly. For example, when the courts examined the California case you mention, they were very clear that conscience clauses cannot be used to justify discrimination against certain groups of people. In general, conscience clauses have been interpreted to permit objections to participating in certain kinds of activities, not objections to serving certain kinds of people. So the fact that some people think they can justify discriminatory behavior by appeal to conscience doesn’t mean there’s something wrong with conscience clauses — it means there’s something wrong with how people understand or interpret such clauses.

    Consider an analogy… Suppose someone propogates nonsense about the history of life because they have a seriously distorted understanding of the theory of evoultion by natural selection. That doesn’t discredit evolutionary theory. Instead it discredits the faulty understanding of the theory. Same thing here.

  18. #18 PalMD
    January 26, 2009

    they were very clear that conscience clauses cannot be used to justify discrimination against certain groups of people.

    Most conscience clauses apply almost exclusively to procedures and services utilized by women.

  19. #19 bob koepp
    January 26, 2009

    Pal –
    Most of the conscience clauses I’ve looked at, for example, embedded in the “codes of ethics” of various professional groups, do not specify particular procedures or services. They are framed in general terms to have a broader range of application.

    There’s no question, however, but that when providers have objected to procedures “based on conscience,” it’s almost always something to do with reproduction, and it’s almost always women who are being refused services. While I have no doubt that some people cry “Conscience!” to mask discrimination, a differential impact, in and of itself, isn’t enough to qualify something as discriminatory under the law.

  20. #20 David
    January 26, 2009

    Doesn’t this fall under the rubric of informed consent? A doctor who decides to withhold information from a patient and force the patient into a treatment path selected by the doctor is violating the principal of autonomy. The patient has a right to full information, even if the doctor disagrees. Perhaps a doctor may decline to perform a procedure, but to fail to inform the patient in an unbiased way is authoritarian and dishonest.

  21. #21 SimonG
    January 28, 2009

    I used to work for a company with ties to the tobacco industry. Sometimes, when sitting on interview panels a candidate would drop out on learning of those ties. That’s perfectly reasonable, although not a choice I would have made at that time. However, if they had taken the job and then said that they weren’t prepared to do those parts of their job concerned with the tobacco business they would have been shown the door pretty damn quickly.

    Doctors, pharamacists or whatever know what the job entails.

  22. #22 Sean Murphy
    January 29, 2009

    Resources on the Protection of Conscience Project website may be of interest to the participants.

  23. #23 PalMD
    January 29, 2009

    Sean, rather than just linking to your lame excuse for a site with it’s horribly misguided morals, why don’t you just say what you think?