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in Health Care; Delegations of Authority expands the ability to discriminate, denies patients health care and should be rescinded.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.

 

Physician warns of threat to freedom of conscience in Ireland

The Irish Times

Andrew O’Regan

Sir, – I have a number of concerns relating to conscientious objection and abortion.

The recently published heads of Bill define termination of pregnancy as “a medical procedure which is intended to end the life of the foetus”.

If the referendum is passed, this is the procedure that will be available on demand for any reason up to 12 weeks and after 12 weeks on vague health grounds.

First, it is of great worry to Irish practitioners that doctors, nurses and midwives cannot avoid participation in abortion in an increasing number of jurisdictions, including Sweden, Iceland, Finland and Bulgaria.

Second, in the UK supreme court, two midwives lost their battle to be treated as “conscientious objectors”, and to be excused from participating in abortions.

The midwives were told that while they could refuse to carry out the procedures themselves, they were obliged to delegate these duties to other staff and to supervise the staff during the abortions.

Many doctors and nurses consider that if their conscience prevents them from intentionally ending the life of the foetus, they should not be required to supervise and organise this same act.

The legislation proposed if the Eighth Amendment is repealed will oblige GPs and other healthcare professionals who conscientiously object to transfer care to another doctor and to inform the patient in writing that they may seek review of the objecting doctor’s decision.

Third, in 2013 a resolution to restrict the right of doctors and nurses to conscientious objection was narrowly defeated in the European Parliament. Some Irish MEPs voted for this. In the recent Dáil debates some politicians argued against a doctor’s right to avoid participation in abortion.

We have seen how one political party expelled a number of members for voting with their consciences in 2013 and how another party suspended one of the youngest female TDs in Dáil Éireann for exercising her conscience in a vote last month.

Fourth, some academic campaigners have been arguing for the removal of conscientious objection across Europe, claiming that it can be used as a “subtle method for limiting access to abortion”.

Finally, under Minister for Health Simon Harris’s plans for abortion, GPs and others will not be entitled to conscientiously object to participating in the intentional destruction (not delivery) of the foetus where there is a risk to the life or health of the patient in an emergency.

No evidence has been produced to show that intentional destruction of the foetus is necessary to avoid risks to the life or health of a pregnant patient.

I would urge GPs and our colleagues from other disciplines who are also in the front line of patient care to inform themselves fully of the implications for the practice of medicine should this referendum be passed. – Is mise,

Dr ANDREW O’REGAN,

(General Practitioner and Senior Lecturer),
Killarney,
Co Kerry.

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.

A bill currently before the House of Lords has brought conscientious objection in medicine into widespread public discussion in the United Kingdom, if not yet on the other side of the Atlantic. . . [Full text]

Hawaii legalizes assisted suicide: Refusing to refer for suicide may incur legal liability

Sean Murphy*

Assisted suicide will become legal in Hawaii on 1 January, 2019, as a result of the passage of the Our Care, Our Choice Act. Introduced in the state House of Representatives only in January, it passed both the House and Senate and was approved by Governor David Ige on 5 April. Beginning next year, physicians will be able to write prescriptions for lethal medications for Hawaiian residents who are capable of informed consent, who are at least 18 years old, and who have been diagnosed with a terminal, incurable disease expected to result in death within six months.1

And beginning next year, Hawaiian physicians who refuse to facilitate assisted suicide by referring patients to a willing colleague may face discipline — including expulsion from the medical profession — or other legal liabilities. Hawaii could become one of only two jurisdictions in the world where willingness to refer patients for suicide is a condition for practising medicine.2 . . . [Full text]

An effective referral is still a referral

Sanasi Jayawardena, Alexandra A Majerski

We are writing to respond to Dr. Steven Bodley’s letter: “Just the Facts on Effective Referral.” . . . The College of Physicians and Surgeons of Ontario’s (CPSO’s) effective referral policy for MAiD does not go far enough in protecting the religious freedom of physicians. . . It is unfortunate that the CPSO does not acknowledge that the provision of an “indirect” referral still renders the referring physician complicit. . . . medical students training in Ontario must now seriously consider taking their skills and talents to another province or jurisdiction in which they can practice their vocation in a manner that upholds their integrity. . . [Full Text]

Mexico enacts provision protecting freedom of conscience for physicians, nurses

Sean Murphy*

Mexico has added a provision to its General Law on Health recognizing freedom of conscience of all physicians and nurses in relation to all services, except in emergencies and life-threatening situations.  In doing so, those responsible took note of existing provisions in The Bioethics Code for Health Personnel and The Code of Conduct for Health Personnel.  The latter includes a particularly striking passage:

32.  It should be emphasized that doctors are  professionals of science and conscience, and cannot be reduced to mere instruments of the patient’s will, since, like the patient, they  are free and responsible persons with a unique collection of values that regulate their lives.

There is no requirement for referral, which many objecting health care workers would find unacceptable because of concern that referral would make them complicit in what they believe to be wrongful conduct.  The new provision is specific to freedom of conscience and does not address issues of access and availability of non-objecting personnel, which will presumably be managed administrative measures or other legal means.

Two-thirds of GPs will refuse to provide abortion pills

Doctors voted in closed forum to rule themselves out of service

Irish Independent

Eilish O’Regan

A majority of GPs say they will not provide abortion pills to women in the first 12 weeks of pregnancy if it becomes law, according to a survey of family doctors.

Nearly seven in 10 of the 497 GPs who voted in a closed doctors’ forum said they would not be involved in medical abortions.

Around 15.7pc said they would provide the service and 16.1pc were “unsure”.

The doctors are among 3,700 GPs who are registered with GPBuddy.ie, the online medical directory designed by GPs for Irish healthcare professionals.

They responded to a series of questions on the confidential forum.

Although the survey has its limitations, it indicates that, if rolled out nationwide, it would mean a substantial number of GPs would opt out of the abortion service.

However, they would be obliged to refer a woman seeking an abortion to a doctor who provides the procedure. . . [Full Text]

New Zealand College of GPs does not endorse euthanasia: opposes coerced referral

College of GPs does not endorse euthanasia or physician-assisted suicide: response to call for submissions on End of Life Choice Bill

News Release

For immediate release

Royal New Zealand College of General Practitioners

The Royal New Zealand College of General Practitioners has submitted its response to the Justice Committee of Parliament today (6 March 2018). The submission is clear that the College does not endorse euthanasia or physician-assisted suicide, which it considers a matter for individual members’ consciences, within the law.

The submission makes 17 recommendations to the Justice Committee, in light of the state of palliative care in New Zealand, the effect legislation may have on vulnerable people, and the effect euthanasia and physician-assisted suicide has on the doctor-patient relationship. The submission also goes into detail to recommend changes to specific challenges the Bill, as drafted, poses. That includes criteria for assisted dying, conscientious objection, and the role of the medical practitioner.

Dr Tim Malloy, President of the Royal New Zealand College of General Practitioners, said:

“Whether for or against euthanasia, the College’s members are motivated by compassion – this is a key tenet of the profession. We believe that each general practitioner in New Zealand will have their own ethical view on whether euthanasia or physician-assisted suicide is right.

“However, whether or not this Bill goes ahead, there are significant challenges that must be addressed. Fundamentally, New Zealanders need accessible, good quality palliative care. The Government should strengthen these services, so we can all experience a dignified, comfortable death.

“The College has made several recommendations to the Justice Committee for its consideration on the Bill itself. The Bill, currently, has poorly defined criteria for assisted dying. Diagnosis is difficult, we sometimes get a diagnosis wrong. And knowing if a patient is able to make a rational decision, during their end of life care, can be incredibly difficult.

“Parliament should consider our 17 recommendations carefully, given the strong apprehension from general practitioners about legalising euthanasia and physician-assisted suicide.”


Background

General practice is a medical speciality, and general practitioners (GPs) treat patients of all ages, from neonates to elderly, across the course of their lives. GPs make up 40 percent of the medical workforce.

The Royal New Zealand College of General Practitioners is the professional body for GPs, and is the largest medical college in the country. The College’s mission is improving the health of all New Zealanders.

The College’s submission to the Justice Committee can be read on its website. The College has also submitted a compilation of members’ submissions.

The recommendations are:

1. The Government improves and strengthens palliative care services for all New Zealanders.

2. The Government provides more financial support for families caring for a family member at the end of their life.

3. The Government invests in ensuring Māori have access to culturally appropriate palliative care.

4. The Government implements a public information campaign to ensure New Zealanders understand what euthanasia and physician-assisted suicide are, who would be eligible for it, and the wider implications of any legalisation before the Bill progresses further through Parliament. This would be of particular importance if the Government holds a referendum on this issue.

5. The Government invests more money in mental health services.

The following recommendations apply if the law is changed:

6. The Bill specifically prevents people with mental health conditions from qualifying for euthanasia or physician-assisted suicide.

7. The Select Committee carefully considers the scope of medical practitioners and minimum practice experience of the practitioners who would offer euthanasia or physician-assisted suicide services.

8. The Bill requires that medical practitioners receive appropriate training and support to enable them to provide quality advice and care to patients and their families.

9. The minimum age of eligibility for euthanasia be set at 25 years.

10. The Bill’s eligibility criteria are reconsidered to tighten the definition of who is eligible for euthanasia and for physician-assisted suicide.

11. The Bill’s introduction be amended to remove the requirement for medical practitioners who do not wish to participate in euthanasia to refer patients to the SCENZ Group.

12. Patients seeking euthanasia or physician-assisted suicide be obliged to self-refer to the SCENZ register in the first instance to consult with a registered medical professional who is trained and willing to provide physician-assisted suicide and euthanasia services.

13. Clause 8 be amended to recognise the difficulties of making accurate prognoses and to clarify whether medical practitioners’ advice to patients is limited to medical impacts.

14. The Select Committee considers how to deal with situations where a patient with reduced decision-making capacity wishes to forgo the Advanced Care Plan made when they were mentally competent.

15. Clause 15 be amended to make it explicitly clear if the Bill refers to euthanasia or physician-assisted suicide, and if both, when the legislation applies to either option.

16. The Select Committee considers the complexities of euthanasia and/or physician-assisted suicide if something goes wrong.

17. Clause 19 be amended to ensure the privacy and confidentiality of the medical professionals who elect to perform euthanasia or provide physician-assisted suicide.

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.

Physicians seek leave to appeal Ontario court ruling against physician freedom of conscience

Introduction

Physicians and physician associations are seeking leave to appeal a decision of the Ontario Divisional Court to the effect that physicians must collaborate in providing procedures and services to which they object for reasons of conscience, even if that means collaborating in euthanasia and assisted suicide.  The appeal will be costly.  Faye Sonier, Chief Executive Office of one of the associations that brought the challenge, has issued a plea for donations to support the appeal by Canadian Physicians for Life, the Christian Medical and Dental Society, and the Canadian Federation of Catholic Physicians’ Societies.

Plea for donations to support the appeal of the Ontario Divisional Court decision

The time has come to further our fight to defend the conscience rights of doctors in Ontario. I’m asking you to support our efforts in this fight by making a donation today

As you know, the College of Physicians and Surgeons of Ontario (CPSO) decision was released on January 31. The court found the religious freedom rights of Ontario doctors are significantly violated by the CPSO’s policies, but that those violations can be justified to ensure patient access to healthcare. 

After lengthy consultation with the parties involved in our legal coalition and with over a dozen constitutional lawyers, we’ve decided to request permission from the Ontario Court of Appeal to appeal the decision.

We are pursuing an appeal as the decision was troubling and problematic on many fronts. We have numerous grounds of appeal from which to choose and we will narrow our focus in the coming days.

This is an important step in a process:

  • to ensure that policies that serve only to restrict the constitutional freedoms of physicians do not go unchallenged;
  • to dissuade other provinces from acting similarly;
  • and to communicate that patient access to healthcare is not hindered by maintaining the respect for conscientious objectors in the medical field.

The three physician groups involved in this legal fight, Canadian Physicians for Life, the Christian Medical and Dental Society, and the Canadian Federation of Catholic Physicians’ Societies, are joining together to raise the $125,000 needed for this next step of litigation.

We’re coming to you to ask for your financial support.

Much of the legal costs will be accrued up front as we must conduct research and prepare our written arguments to file the legal documents requesting the opportunity to appeal.  One-time donations made here will directly support this legal fight.

Physicians for Life is a registered charity and issues tax receipts.

Sincerely,

Faye Sonier
Executive Director & General Legal Counsel

P.S. Thank you so much for enabling CPL to continue this battle to defend conscience rights by making your donation today. This case is urgent, and we need funds as soon as possible to ensure that our legal counsel can be in the best position possible to further this fight.