HHS rules prevent providers from being forced to do things that violate moral convictions

The Hill

Reproduced with permission

Diana Ruzicka*

In the April 4, 2018 article, HHS rule lowers the bar for care and discriminates against certain people, nursing leaders, Pamela F. Cipriano and Karen Cox, wrote that the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) Proposed Rule: Protecting Statutory Conscience Rights in Health Care; Delegations of Authority expands the ability to discriminate, denies patients health care and should be rescinded. These accusations are unfounded and the rule should be supported.

What the rule does is “more effectively and comprehensively enforce Federal health care conscience and associated anti-discrimination laws.” It is not an effort to allow discrimination but an effort to prevent it by enforcing laws already on the books and gives the OCR the authority to oversee such efforts. This is something that nursing should encourage because it supports the Code of Ethics for Nurses (code).

The code reminds us that, “The nurse owes the same duties to self as to others, including the responsibility to promote health and safety, preserve wholeness of character and integrity, maintain competence and continue personal and professional growth.”

It is precisely because nurses are professionals who hold themselves to these standards that patients have come to see nurses as persons worthy of their trust, persons in whose hands they are willing to place their lives. Being granted by the public this weighty and solemn responsibility is humbling and must never be taken lightly. Thus the nurse’s duty to practice in accord with one’s conscience, to be a person of wholeness of character and integrity, is recognized by the.

It is odd that, despite supporting a nurse’s duty to conscience and the right to refuse to participate in an action to which the nurse objects on the grounds of conscience, Cipriano and Cox insist that the nurse, must assure that others make the care available to the patient. This suggests a failure to recognize that referring the patient to someone who will do the objectionable act in place of the nurse can make the nurse complicit.

The culpability of complicity is well recognized in law and ethics, as an accomplice is liable to the same extent as the person who does the deed. Thus, to make a referral and be complicit in an act to which the nurse conscientiously objects, also violates conscience. We doubt nursing leaders actually support this, as the consequences would be chilling.

When persons are made to violate their conscience, to set it aside, to silence it, moral integrity is eroded and moral disengagement progressively sets in. To move from caring for our fellow human beings to acting on them in ways that our conscience tells us we should not, requires powerful cognitive manipulation and restructuring to free ourselves of the guilt associated with this violation of our deeply held moral or religious beliefs.

Moral disengagement has frightening negative consequences, namely a pernicious dehumanization of persons, including oneself and of society as a whole. Rather than a nurse being someone of moral courage, ethical competence and human rights sensitivity, as our code directs, a nurse would have to be someone who is willing to surrender their conscience to expediency, powerful others, or whatever happens to be permitted by law at the time and place.

No longer would patients find that nurses are persons they can trust. It is precisely because nurses practice in accordance with their conscience that the public continues to grant them high scores on honesty and ethics.

None of this is to say that nurses may abandon patients. By promptly seeking a transfer of assignment that does not involve the objectionable act or by transferring the patient elsewhere without making a referral, the nurse continues to uphold the code by “promoting, advocating for and protecting the rights, health and safety of the patient [and, at the same time,] preserving wholeness of character and integrity.”

Clearly, refusal to care for a patient based on an individual attribute is unjust discrimination and has no place in nursing or health care. But that is not what the rule does. It protects the right to object to being forced to participate in an act that violates a person’s deeply held moral convictions or religious beliefs and from discrimination as a result of one’s refusal to participate in such an act.

To call for rescinding the rule, whose purpose is to protect this fundamental human right, would be short-sighted and could make unjust discrimination more likely and harm not only nursing but also the patients we serve.

 

Tongue splitting, bodily harm, and human dignity

BioEdge

Xavier Symons

Contemporary cosmetic surgery has become a tool for realising bizarre personal fantasies. Sometimes it also leads to significant bodily harm. “Tongue-splitting” is an operation whereby a person’s tongue is split from the tip to as far back as the underside base. The operation has become a common alteration for body-modification enthusiasts, who say it heightens their sense of taste and touch.

Some jurisdictions, however, have enacted a ban on the procedure. The operation can be painful, and can temporarily impede one’s capacity for speech.

In a recent post on the blog Practical Ethics, UK lawyer Charles Foster considers the legality and ethics of the procedure.

Foster discusses the case of R v BM, where a Wolverhampton tattooist was found guilty of inflicting grievous bodily harm on a patient after splitting their tongue. Even though the customer consented, the court found that consent was not a defence against having inflicted grievous bodily harm.

Foster argues that the ruling represents a defence of basic human dignity, which transcends the ambit of personal autonomy:

[The ruling] is a salutary reminder that there are limits to the law’s protection of personal autonomy. Factors other than autonomy are in play in the criminal law. I have argued elsewhere that the primary factor (and the foundational factor in the criminal law – in which all other factors, including autonomy, are rooted) is human dignity.

Indeed, Foster argues that in harming another, one does violence to one’s own human dignity:

One might say that X causing injury to Y is doubly culpable because in doing so X outrages not only Y’s dignity but also his own (X’s) dignity…dignity is ‘Janus-faced’.


This article is published by Xavier Symons and BioEdge under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation to BioEdge. Commercial media must contact BioEdge for permission and fees.

When can a doctor conscientiously object?

America

Bernard G. Prusak

Over the last decade, the culture wars in the United States have broken new ground: They have become battles over the rights of conscience. For example, now that same-sex marriage is a right, the question before the U.S. Supreme Court in the case of Masterpiece Cakeshop is whether its sympathetic, telegenic owner, Jack Phillips, is within his rights to refuse to make a wedding cake for a gay couple. Similarly, under the Obama administration, the court heard arguments more than once over whether employers who object on religious grounds to contraceptives or abortion should be exempted from having to provide employees health insurance that includes such services.

By contrast, debates over conscientious objection in medicine have not had the same notoriety, though they have broken out repeatedly among health care professionals and medical ethicists since the turn of the century, when there was a flare-up over pharmacists’ refusing to fill prescriptions for emergency contraceptives. . . [Full text]

You’re a surgeon. A patient wants to look like a lizard. What do you do?

As medical treatments advance, the need to accommodate conscientious objection in healthcare is more pressing

The Guardian
Reproduced with permission

David S. Oderberg*

Imagine that you are a cosmetic surgeon and a patient asks you to make them look like a lizard. Would you have ethical qualms? Or perhaps you are a neurosurgeon approached by someone wanting a brain implant – not to cure a disability but to make them smarter via cognitive enhancement. Would this go against your code of professional ethics? With the rapid advance of medical technology, problems of conscience threaten to become commonplace. Perhaps explicit legal protection for conscientious objection in healthcare is the solution.

There is limited statutory protection for those performing abortion, and there is some shelter for IVF practitioners. Passive euthanasia (withdrawal of life support with intent to hasten death) is also part of the debate over doctors’ conscience rights. That’s about it as far as UK law is concerned – though freedom of conscience is enshrined in numerous conventions and treaties to which we are party. Abortion, artificial reproductive technologies (involving embryo research and storage) and passive euthanasia are the flashpoints of current and historic controversy in medical ethics. The debate over freedom of conscience in healthcare goes to the heart of what it means to be a medical practitioner.

Curing, healing, not harming: these are the guiding principles of the medical and nursing professions. But what if there is reasonable and persistent disagreement over whether a treatment is in the patient’s best interests? What if a practitioner believes that treating their patient in a particular way is not good for them? What if carrying out the treatment would be a violation of the healthcare worker’s ethical and/or religious beliefs? Should they be coerced into acting contrary to their conscience?

Such coercion, whether it involve threats of dismissal, denial of job opportunities or of promotion, or shaming for not being a team player, is a real issue. Yet in what is supposed to be a liberal, pluralistic and tolerant society, compelling people to violate their deeply held ethical beliefs – making them do what they think is wrong – should strike one as objectionable.

Freedom of conscience is not only about performing an act but about assisting with it. There are some people who ask doctors to amputate healthy limbs. If you were a surgeon, my guess is that you would refuse. But what about being asked to help out? Would you hand over the instruments to a willing surgeon? Or supervise a trainee surgeon to make sure they did the amputation correctly? If conscientious objection is to have any substance in law, it must also cover these acts of assistance.

This country has a long and honourable tradition of accommodating conscientious objectors in wartime – those who decline to fight or to assist or facilitate the fighting by, say, making munitions. They can be assigned to other duties that may support the war effort yet are so remote a form of cooperation as not to trouble their consciences. In any war, the objectors are a tiny fraction of the combat-eligible population. Yet when it comes to one’s rights, do numbers matter? Has their existence ever prevented a war from being carried out to the utmost? I fail to see, then, why we are tolerant enough to make adjustments for conscientious objectors in the midst of a national emergency, yet in peacetime would be reluctant to afford similar adjustments to members of one of the most esteemed professions.

Do we think medical practitioners should be no more than state functionaries, dispensing whatever is legal no matter how much it is in conflict with personal conscience and professional integrity – lest they be hounded out of the profession? Some academics think expulsion is not good enough. Or should healthcare workers be valets, providing whatever service their patients demand? Perhaps when practitioners find themselves faced with demands for the sorts of treatment I’ve mentioned – or perhaps gene editing treatments or compulsory sterilisation, society will act. Or maybe by then it will be too little, too late.

David S Oderberg is professor of philosophy at the University of Reading, and author of Declaration in support of conscientious protection in medicine

 

 

‘Medical Conscience’ Is Becoming a Partisan Controversy

National Review
Reproduced with permission

Wesley J. Smith

Should doctors and nurses be forced to participate in interventions they find morally abhorrent or unwarranted? As one example, should ethical rules require pediatricians to medically inhibit normal puberty as demanded by parents to “treat” their child’s gender dysphoria — even if they are morally opposed to the concept and/or the supposed treatment?

Some say yes. Thus, influential bioethicist Ezekiel Emanuel argues that medical professionals are obligated to accede to the patient’s right to receive legal interventions if they are generally accepted within the medical community — specifically including abortion. Emanuel stated doctors who are morally or religiously opposed, should do the procedure anyway or procure a doctor they know will accede to the patient’s demands. Either that, or get out of medicine.

Supporters of “medical conscience” argue that forcing doctors to participate in interventions they find morally abhorrent would be involuntary medical servitude. They want to strengthen existing laws that protect doctors, nurses, and pharmacists’ who refuse participation in legal interventions to which they are morally or religiously opposed.

Now, medical conscience looks to become another battlefront in our bitter partisan divide. After the Trump administration announced rules that will place greater emphasis on enforcing federal laws protecting medical conscience, Democratic state attorneys general promised to seek a court order invalidating the new rule. From the New York Law Journal story:

But 19 state attorneys general, led by New York’s Eric Schneiderman, argue that it is the patients who will be discriminated against under the proposed rule. This is particularly true, they argue, in the cases of marginalized patients who already face discrimination in trying to obtain health care, such as lesbian, gay, bisexual and transgender patients and male patients seeking HIV/AIDS preventative medications, according to the comments filed in opposition to the rule.

“If adopted, the proposed rule … will needlessly and carelessly upset the balance that has long been struck in federal and state law to protect the religious freedom of providers, the business needs of employers, and the health care needs of patients,” they state.

The stakes can only increase as moral controversies in health care intensify in coming years. As just two examples, some bioethicists are lobbying to enact laws that would give dementia patients the right to sign an advance directive requiring nursing homes to starve them to death once they reach a specified level of cognitive decline. There are also increasing calls to do away with the dead-donor rule in transplant medicine so that PVS patients can be organ-harvested while still alive

If these acts become legal, should doctor and nurses who practice in these fields be forced to participate? If Emanuel’s opinion prevails, the answer could be yes. If medical professionals are protected by medical conscience legal protections, the answer would be no.

Medical conscience is not just important to personally affected professionals. All of us have a stake. Think about the potential talent drain we could face if we force health-care professionals to violate their moral beliefs. Experienced doctors and nurses might well take Emanuel’s advice and get out of medicine — while talented young people who could add so much to the field may avoid entering health-care professions altogether.

Comity is essential to societal cohesion in our moral polyglot age. Medical conscience allows patients to obtain morally contentious procedures, while permitting dissenting medical professionals to stay true to their own moral and religious beliefs. I hope the Democrats’ lawsuits are thrown out of court.

Protecting conscience: Why this House of Lords bill is aimed at defending healthcare professionals

Christian Today

Laurence Wilkinson

With the Brexit legislation receiving the lion’s share of attention in Parliament, there has been little to no coverage on the progression of any other bill in recent months. This is usually the time of year where activity on private members’ bills (which have only a small chance of passing into law) winds down. However, with the current Parliamentary Session being extended to two years to deal with the magnitude of the Brexit legislation, we are in extraordinary times.

There is one such private member’s bill before the House of Lords which has seen a surprising ramp-up in activity over the last few months. The bill is sponsored by Baroness O’Loan – a widely respected legal mind from Northern Ireland who was the first Police Ombudsman – and will have its committee stage today, Friday. It is focused on the relatively niche area of protection of conscience for healthcare professionals. . . [Full text]

 

Why conscientious objection in the medical profession must be protected

The House Magazine

Fiona Bruce, MP

Accommodation of conscientious objection is a long-respected matter of liberty and equality in this country. This respect should be as relevant today as ever, writes Fiona Bruce

The Conscientious Objection (Medical Activities) Bill is scheduled for Committee Stage in the House of Lords this Friday, and I have been watching its progress with interest. The Bill’s sponsor is Baroness Nuala O’Loan – a widely respected legal mind in the Lords who served as first Police Ombudsman in Northern Ireland, and is a former Chair of the Equality and Human Rights Commission’s Human Rights Inquiry. Among those who spoke in favour of the Bill at Second Reading were the former Conservative Lord Chancellor, Lord Mackay of Clashfern, and senior Conservative Peers Lord Elton, Baroness Eaton and the renowned surgeon, Lord McColl of Dulwich. . . [Full text]

 

Assisted-Suicide Pushers Want Forced MD Participation

National Review
Reproduced with permission

Wesley J. Smith*

Assisted-suicide advocates pretend they want assisted suicide limited to the terminally ill.

They pretend that they favor strict guidelines.

And they pretend they would never want doctors forced to participate in intentionally ending the life of a patient. Indeed, the laws they have passed all contain conscience protections.

Except, sometimes they show their true hands. For example, when the Canadian Supreme Court imposed a broad right to lethal-injection euthanasia — certainly not limited to the dying — Compassion and Choices (formerly the Hemlock Society) issued a laudatory press release — later scrubbed because it told the truth about the movement’s true goals.

And now, Compassion and Choices — again, which has included conscience protections in laws it sponsored as a necessary predicate to passage — has come out strongly against a proposed Trump-administration office in HHS to protect medical professionals from forced participation in procedures against their consciences and/or religious beliefs. From an email sent to its supporters (my emphasis):

The new division marks one of the greatest threats we’re facing to the future of the end-of-life choice movement and patient-centered care.

Under the HHS proposed rules, providers who object to various procedures could impose their own religious beliefs on their patients by withholding vital information about treatment options from them — including options such as voluntarily stopping eating and drinking, palliative sedation or medical aid in dying. And your federal tax dollars will be used to protect physicians who make the unconscionable decision to willfully hold back information from a patient and abandon them when they are at their most vulnerable.

This is unacceptable and needs to be stopped.

Note the warning that conscience protections threaten “the future” of the assisted-suicide movement. It is abundantly clear that these suicide advocates believe forcing doctors to participate in suicide is essential to implementing their lethal agenda.

C & C already tried to impose such a duty on doctors in Vermont in support of a regulation that sought to force doctors to share information on assisted suicide with patients. That violated the assisted-suicide law’s conscience protections. Dissenting doctors sued and forced the bureaucrats to retreat. C & C tried to intervene legally to (unsuccessfully) thwart that settlement.

So, this is the truth: If C & C prevails in legalizing assisted suicide (and eventually, euthanasia) across the country, pressure will soon begin to force dissenting MDs, nurses, and pharmacists to either get on the death train or get out of medicine.

For those with eyes to see, let them see.

 

Accessed 2018-03-28

 

Obliged to Kill

The Assault on Medical Conscience

The Weekly Standard
Reproduced with permission

Wesley J. Smith*

A court in Ontario, Canada, has ruled that a patient’s desire to be euthanized trumps a doctor’s conscientious objection. Doctors there now face the cruel choice between complicity in what they consider a grievous wrong – killing a sick or disabled patient – and the very real prospect of legal or professional sanction.

A little background: In 2015, the Supreme Court of Canada conjured a right to lethal-injection euthanasia for anyone with a medically diagnosable condition that causes irremediable suffering – as defined by the patient. No matter if palliative interventions could significantly reduce painful symptoms, if the patient would rather die, it’s the patient’s right to be killed. Parliament then kowtowed to the court and legalized euthanasia across Canada. Since each province administers the country’s socialized single-payer health-care system within its bounds, each provincial parliament also passed laws to accommodate euthanasia’s legalization.

Not surprisingly, that raised the thorny question of what is often called “medical conscience,” most acutely for Christian doctors as well as those who take seriously the Hippocratic oath, which prohibits doctors from participating in a patient’s suicide. These conscientious objectors demanded the right not to kill patients or to be obliged to “refer” patients to a doctor who will. Most provinces accommodated dissenting doctors by creating lists of practitioners willing to participate in what is euphemistically termed MAID (medical assistance in dying).

But Ontario refused that accommodation. Instead, its euthanasia law requires physicians asked by a legally qualified patient either to do the deed personally or make an “effective referral” to a “non-objecting available and accessible physician, nurse practitioner, or agency .  .  . in a timely manner.”

A group of physicians sued to be exempted from the requirement, arguing rightly that the euthanize-or-refer requirement is a violation of their Charter-protected right (akin to a constitutional right) to “freedom of conscience and religion.”

Unfortunately, the reviewing court acknowledged that while forced referral does indeed “infringe the rights of religious freedom .  .  . guaranteed under the Charter,” this enumerated right must nonetheless take a back seat to the court-invented right of “equitable access to such medical services as are legally available in Ontario,” which the court deemed a “natural corollary of the right of each individual to life, liberty, and the security of the person.” Penumbras, meet emanations.

And if physicians don’t want to commit what they consider a cardinal sin, being complicit in a homicide? The court bluntly ruled: “It would appear that, for these [objecting] physicians, the principal, if not the only, means of addressing their concerns would be a change in the nature of their practice if they intend to continue practicing medicine in Ontario.” In other words, a Catholic oncologist with years of advanced training and experience should stop treating cancer patients and become a podiatrist. (An appeal is expected.)

This isn’t just about Canada. Powerful political and professional forces are pushing to impose the same policy here. The ACLU has repeatedly sued Catholic hospitals for refusing to violate the church’s moral teaching around issues such as abortion and sterilization. Prominent bioethicists have argued in the world’s most prestigious medical and bioethical professional journals that doctors have no right to refuse to provide lawful but morally contentious medical procedures unless they procure another doctor willing to do as requested. Indeed, the eminent doctor and ethicist Ezekiel Emanuel argued in a coauthored piece published by the New England Journal of Medicine that every physician is ethically required to participate in a patient’s legal medical request if the service is not controversial among the professional establishment—explicitly including abortion. If doctors don’t like it? Ezekiel was as blunt as the Canadian court:

Health care professionals who are unwilling to accept these limits have two choices: select an area of medicine, such as radiology, that will not put them in situations that conflict with their personal morality or, if there is no such area, leave the profession.

For now, federal law generally supports medical conscience by prohibiting medical employers from discriminating against professionals who refuse to participate in abortion and other controversial medical services. But the law requires administrative enforcement in disputes rather than permitting an individual cause of action in civil court. That has been a problem in recent years. The Obama administration, clearly hostile to the free exercise of religion in the context of health care, was not viewed by pro-life and orthodox Christian doctors as a reliable or enthusiastic upholder of medical conscience.

The Trump administration has been changing course to actively support medical conscience. The Department of Health and Human Services recently announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights, which would shift emphasis toward rigorous defense of medical conscience rights.

Critics have objected belligerently. The New York Times editorialized that the new emphasis could lead to “grim consequences” for patients—including, ludicrously, the denial by religious doctors of “breast exams or pap smears.”

The American College of Obstetricians and Gynecologists joined the Physicians for Reproductive Health to decry the creation of the new office – which, remember, is merely dedicated to improving the enforcement of existing law – warning darkly that the proposal “could embolden some providers and institutions to discriminate against patients based on the patient’s health care decisions.”

The Massachusetts Medical Society joined the fearmongering chorus, opining that the new office could allow doctors to shirk their “responsibility to heal the sick.” Not to be outdone in the paranoia department, People for the American Way worried the new office might mean that “other staff like translators also refuse to serve patients, which could heighten disparities in health care for non-English-speaking patients.”

The Ontario court ruling is a harbinger of our public policy future. Judging by the apocalyptic reaction against the formation of the Conscience and Religious Freedom Division, powerful domestic social and political forces want to do here what the Ontario court ruling – if it sticks on appeal – could do in that province: drive pro-life, orthodox Christian, and other conscience-driven doctors, nurses, and medical professionals from their current positions in our health-care system.


Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a consultant to the Patients Rights Council.

Munich university remembers executed students: “Law changes, the conscience doesn’t”

Ludwig Maximilians Universität München

Justice, freedom, human rights, moral consciousness, courage, willingness to accept responsibility – what do these values and virtues cost? . . . On 18 February 1943, Hans and Sophie Scholl were arrested by the Gestapo, after they had scattered copies of their latest leaflet around the Main University Building. Further arrests were made in the days following and, in several separate trials, the leading members of the White Rose were convicted by an inhuman regime and put to death. [Full text]