Conscience in the Practice of the Health Professions

The President's Council on Bioethics
Thursday, September 11, 2008
Session 3: Conscience in the Practice of the Health Professions

Full Text

DR. LYERLY: Well, thank you very much, Dr. Pellegrino , and thank you for inviting me to speak today. I'm absolutely honored to have the opportunity to speak to such a distinguished group and on such an important topic. I've been asked by Drs. Pellegrino and Davis to, in their words, map the contemporary domain regarding issues of conscience in the health professions. As Dr. Pellegrino noted, I should clarify that I'm speaking for myself.

In the last several years I've had the opportunity to think seriously about the question of conscience in the practice of medicine, both in my role as an obstetrician/gynecologist caring for patients, working with colleagues, training residents, and as someone who spends most of her time thinking about ethical issues in reproductive medicine.

I chaired and I currently chair the ethics committee of the American College of Obstetricians and Gynecologists, and I learned quite a bit about the topic of conscience during our deliberations. But as Dr. Pellegrino noted, the views I express today are my own.

Patients and their care providers do not always agree about health care decisions. Such differences are expected and usually, if uncomfortable or frustrating, are not morally - or not deeply morally - problematic. Yet occasionally a situation arises when a physician may find requested or indicated care to be morally objectionable and decline to provide such care on the basis of conscience. That is, of course, at the heart of our discussion today.

Such situations create challenges for professional ethics and social policy. What are the obligations of providers to their patients to provide information, referral, or care? To what degree should public policies be restrictive or protective of provider referrals, and what are the moral considerations that shape the answers to these questions?

So a quick overview. I'll begin with just a brief background, touch on current laws, policies, and the published views of professional organizations, again just to orient, since the question is how we ought to be managing issues of conscience going forward. I'll then turn to the contemporary ethical debate and highlight just a few themes that have emerged with some consensus as relevant to determining how restrictive or protective we should be of conscientious refusals. Finally, I'll end by looking squarely - or at least naming - some of the fundamental distinctions that may be helpful in framing a discussion.

Another disclaimer: I'm not a legal scholar, so I'm just going to stick to the basics here. Since the early 1970s laws have accumulated that are protective of providers' rights of conscience. Operative federal regulations include the Church Amendment, the Coats Amendment, and the Weldon Amendment. The force of these regulations is to protect individuals, institutions' training programs, insurance companies, and others from requirements to participate, or discrimination for not participating, in abortion and sterilization.

As noted in your briefing book, state laws also protect practitioners and institutions from participating not only in abortion and sterilization, but in the provision of contraception, and in some cases protections have extended to any health care task that is against a provider's conscience.

In response to concerns about access to needed reproductive services, a number of state laws have been passed which press in the other direction which are suggestive of a need to limit refusals in the interests of patient well-being. Twenty-seven states have passed contraceptive equity laws which require insurers who cover prescription drugs to offer a full range of contraceptives approved by the FDA.

Sixteen states have passed emergency contraceptive laws, such as the "Compassionate Care for Rape Victims" law, which requires that emergency departments provide information about emergency contraception to special assault victims, dispense EC on demand, or both.

Finally, a handful of states and pharmacy boards have passed laws or policies that say pharmacies must fulfill all valid prescriptions. And so you see the tension reflected in the state and federal laws on the one hand pressing for the protection of providers' conscientious refusals and on the other hand protecting the rights of access for patients.

I think it is important at the outset to note that while the bulk of these conversations have taken as their central concern the provision of elective abortion or abortion on demand, as some call it, there are a breadth of services that some consider morally objectionable. These range from the provision of oral contraception to blood transfusion to the provision of vaccines whose development depended on the use of fetal tissue.

Most of the examples I use today will be situated in the realm of reproductive medicine, but it is important to remember the breadth when we look toward policy, and as we do, to be careful that our policies about conscience in general are not dominated by the question of restrictions on abortion.

While the ACOG document on conscience has garnered considerable attention in the last several months... issues of conscience have been addressed by a number of both national and international professional organizations. And I've listed just a few of them here. I'll concentrate on statements from the AMA's Council on Ethical and Judicial Affairs, the UK 's General Medical Council, and the International Federation of Gynecology and Obstetrics or FIGO.

Most of these documents begin, or at least at some point in the document there is a statement about the primacy of patient welfare. You must make the care of your patient your first concern. The primary commitment of obstetrician/gynecologists is to serve women's reproductive health and well-being. A physician while caring for a patient must regard responsibility to the patient as paramount.

The second thing is that most of these organizations have advocated finding a middle ground, a middle ground between categorical views on either side, either that there's an absolute right to the expression of conscience or there's no right to object. These organizations suggest instead that rights to object should be protected but limited.

The AMA put it this way: "Physician's conscientious objection must be counterbalanced with obligations that will respect patients' autonomy and ability to access medical services." The UK General Medical Council says that their guidelines were meant to balance doctors' and patients' rights, including the right to freedom of thought, conscience, and religion and entitlement to care and the treatments to meet clinical needs and advise us on what to do when these rights conflict.

In striking the balance, professional organizations tend to comment on three areas of particular controversy with respect to individual providers: obligations of providers to give information about treatment options, obligations to refer patients to another physician if the service cannot be provided in good conscience, and obligations to provide the service itself when referral is not possible or practicable in emergency situations.

Of course, all of these issues raise the important concerns that Father Paris raised this morning about cooperation. So let's take a closer look. The General Medical Council with regard to information says, "Patients have a right to information about their condition and the options available to them. You must not withhold information about the existence of a procedure or a treatment because carrying it out or giving advice about it conflicts with your religious or moral beliefs."

The AMA says, "The patient has the right to receive information from physicians and to discuss the benefits, risks, and costs of appropriate treatment alternatives." FIGO says that "Practitioners have duties to inform their patients of all medically indicated options for their care, including options in which the practitioners decline to participate."

A referral is also addressed by most of these organizations. Again, referral has been an even more contentious matter than the provision of information as it brings up the concerns of cooperation and moral complicity. The AMA says, "A physician who refuses to provide a treatment still owes an ethical responsibility toward the patient. In most circumstances physicians who refuse to provide treatments on the basis of religious or moral objections should refer patients to other physicians or health care facility."

Referral actually brings up practical questions among practitioners about what exactly is meant by referral. Must you identify a specific physician? How sure must you be that that provider in question provides the service in question? The UK developed a description that captures a spirit that some have found helpful. "You must tell patients of their right to see another doctor with whom they can discuss their situation and ensure that they have sufficient information to exercise that right. In deciding whether the patient has sufficient information, you must explore with the patient what information they might already have or need. If the patient cannot readily make their own arrangements to see another doctor, you must ensure that arrangements are made without delay for another doctor to take over their care."

And, finally, while almost all organizations affirm that providers are justified in refusing to participate in procedures that they find objectionable on moral grounds, they uphold the obligation to provide care in emergency situations. Patients are entitled to be referred - well, this is another referral one, but it essentially says the same thing.

So provision of care. "In emergency situations to preserve life or physical or mental health practitioners must provide medically indicated care of their patient's choice regardless of the practitioner's moral objections."

Similarly the American Academy of Physician Assistants says something along those lines: "Physician's assistants are obligated to care for patients in emergency situations and to responsibly transfer established patients if they cannot care for them."

So what are some of the ethical considerations that have emerged with some consensus as salient to moral deliberation and policy making around conscientious refusals? Many conversations will begin with the importance of conscience in the profession, the idea that it is critical to good medicine and bioethics that physicians exercise independent judgment, that they should not forsake moral integrity when they enter the practice of medicine, and that conscience is critical to democracy, bioethics, humanity. I suspect that we will hear - we've heard some on this already, and I suspect that we'll hear more from the other panelists with regard to this.

When we hear these arguments, it's easy at first blush to say no when asked about whether a physician should ever act in opposition to her conscience. But I'm going to take a few minutes to discuss a sampling of moral considerations that press against the starker, simpler way of thinking about these topics.

Many of these considerations focus, as I have focused in my career, on the patient who is often in the position of vulnerability in the context of the asymmetrical patient/physician relationship as a need that must be met and who is unable to walk away from the situation.

So what considerations are . . .? Three areas tend to emerge. The first are questions of health or welfare and the harms that might derive from non-provision of information, referral, or care. Second are questions of fairness, and third are questions of respect.

So what considerations are relevant to her? Three areas tend to emerge. The first are questions of health or welfare and the harms that might derive from non-provision of information, referral, or care. Second are questions of fairness, and third are questions of respect. So I'm going to take these one at a time.

Let's talk about health. Consider a case in 2000 known as Shelton versus the University of Medicine and Dentistry [Shelton v. University of Medicine & Dentistry, 223 F.3d 220, 224 (3d Cir. 2000)]. This was in the year 2000. In this case a woman presented to a New Jersey hospital 18 weeks pregnant with a condition known as placental previa. She was bleeding significantly. She had had a couple of other episodes of bleeding in the previous days, and this was a significant hemorrhage.

Now, you have to understand that placental hemorrhage associated with previa is not like bleeding from a cut on your arm or even on your head. As some of you who may have had children know, those can be significant, but it's more than that. In fact, the volume of blood that can be lost in minutes is tremendous, like a garden hose turned on full blast.

The attending physician called for an emergency C-section, but the nurse on duty declined to scrub in since the surgery would result in fetal death due to the delivery prior to viability. The surgery was delayed for 30 minutes. Fortunately in this case that was not too long. The patient was able to be supported while another nurse was identified to take the objecting nurse's place, but it may just as easily have gone the other way. So there was the potential for harm associated with refusal, even mortal harm.

The expression of conscience here kept the life and health of a pregnant woman in harm's way. This case is famous actually - or known - for the fact that this nurse was offered a position elsewhere in the hospital but declined and was eventually fired and sued the hospital for discrimination, but she lost because the hospital had tried to accommodate her.

In other cases the welfare setbacks may be less obvious, but they are there. The woman who requests sterilization at the time of Caesarian section, for example, when her abdomen is open, her fallopian tubes are in reach, a couple of minutes and the operation is over, but due to her physician's objections to the sterilization procedure she's required to undergo a second operation weeks later and take on the risks of anesthesia and entry into her abdomen. So the patient incurs risk, and there's potentially harm to herself due to these objections.

Other harms can be described. I myself have accompanied a patient who, following a rape, was declined access to EC in an emergency room. I witnessed the harm associated with a traumatic decision she had to face between pregnancy termination and gestation, birth, and parenthood of a child conceived as a result of a profound bodily violation.

The second are concerns about fairness. How do we think about conscientious refusals when they differently affect different groups? Dr. Paris noted that he hesitated about mentioning the case of Guadalupe Benitez , but I will mention it, a woman who was denied intrauterine insemination for the treatment of infertility.

And while the terms of refusal have been a point of contention, the refusal seems to have been based on the provider's objection to fertility treatment for lesbians. In broader brush strokes, many have highlighted the fact that conscientious refusals to dispense contraception may place a disproportionate burden on disenfranchised women, reinforcing an unfair distribution of benefits and burdens. And while the scope of conscientious refusal, of course, stretches beyond areas of reproductive medicine, when reproductive issues are at stake, women are disproportionately affected.

Third and perhaps most importantly are questions about respect. Some will call this respect for autonomy, about how refusals affect women's bodily and others' bodily dominion. In many ways this brings up the stark question of choice and the divisive topic of abortion on demand, but let me bring up a subtler case.

As many of you know, for some women pregnancy is life-threatening. For women with pulmonary hypertension, for instance, mortality associated with pregnancy can approach 50 percent. Consider the case of a young woman with just such a cardiopulmonary condition. Imagine her pregnancy is desired. Imagine that politically she is pro-life, perhaps conscientiously she's pro-life, and her provider shares her view. So despite the morbidity associated with her anticipated gestation, the topic of abortion is not raised, she's not counseled about termination of a pregnancy that may threaten her life.

The fact of the matter is that pregnancy in the setting of a life-threatening medical condition is a difficult situation and a situation that entails the critical human question, what am I willing to die for? By not raising the question of abortion, the provider fails to respect in a very deep way the patient's right to consider that question for herself.

Another set of considerations derives specifically from the fact that we're talking about the practice of medicine, which carries role-specific responsibilities, and these considerations actually press in both directions. As legal scholar Alta Charo has famously noted, an absolute right to refusal cannot be supported since medicine has duties that derive from its status as a monopoly.

She states, "States give these professionals the exclusive right to offer such services. By granting a monopoly, states turn the profession into a kind of public utility obligated to provide service to all who seek it. Claiming an unfettered right to personal autonomy while holding monopolistic control over a public good constitutes an abuse of the public trust."

Others have argued that individuals enter the practice of medicine cognizant of the fiduciary duties it entails. Again, provocatively, Savulescu noted in the British Medical Journal, "If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors."

In the other direction, proponents of conscience protections look to the nature of the medicine itself as a healing profession in justifying refusals to perform services they see as non-beneficial, harmful, or deeply, morally wrong. And then, of course, there's the question of scientific integrity, and this speaks both to the question of the validity of the claim based on the idea that the practice of medicine should be evidence-based and that refusals based on inaccurate or incomplete understanding of science should be questioned.

Of particular concern have been claims about the mechanism of action of emergency contraception. Despite a broad misconception that this medication works to prevent implantation, the literature indicates that it prevents fertilization, like other forms of oral contraception. A review in the Journal of the American Medical Association in 2006 indicated that the ability of Plan B to interfere with implantation remains speculative since virtually no evidence supports that mechanism and some evidence contradicts it. The best available evidence indicates that Plan B's ability to prevent pregnancy can be fully accounted for by mechanisms that do not involve interference with post-fertilization events. The authors of this article advocated at the very least women should be apprised of such. This can obviously play out in other arenas - refusal to withdraw nutrition and hydration based on the view that it's cruel to starve a person a death, et cetera.

So moving forward, how might we think about these considerations? How should we think about balancing patients' needs and providers' critical interests in maintaining their personal integrity? Public policy is at best a blunt instrument. What it can't be is subtle and expansive enough to be responsive to the breadth of provider convictions or the nature of meaning and the consequence for the patient.

What it can do is provide rough guidance that sets a presumption about how we should reason. There is an ongoing debate about what that presumption should be. There are those that advocate that the rights of conscience should prevail in all cases, but there is a strong case for an approach that balances the immediate needs of patients with the interests of doctors. The question is how to balance.

Some considerations in terms of balancing might be fairly straightforward. So we know in situations outside of medicine that the validity or authenticity of a claim can determine whether we allow conscientious refusals to guide decision-making. In medicine those things might also be important considerations. Professor Dresser has written eloquently about the ways that distaste for certain procedures or discriminatory factors may be masked by claims of conscience.

But then there are harder questions. It seems to me that there may be a qualitative difference in the way that we balance claims of conscience with patients' interests depending on what is at stake, depending on whether the question is one of welfare, differential access, and, perhaps the most challenging, questions about bodily dominion.

The economies of how we balance may be different depending on what is at stake. If we want to talk about the conditions that must be met to conscientiously refuse to inform, refer, or provide care, how we balance may be different depending on what morally is at stake.

Moving forward, just a few things to consider. At the level of the individual provider, ongoing debate centers around obligations - how should we think specifically about the responsibilities of prior notice, the provision of information and referral.

Of considerable interest - and Dr. Curlin and I spoke about this over lunch - is the role that conversations might have in the process. Might there be a role for respectful conversations involving disclosure of a physician's moral views? Could that soften the sense of complicity?

At the level of institutions some have considered establishment of systems to provide information and referral and staffing that maximizes protection of patient interests and providers' rights of conscience.

Finally, some have advocated shared responsibilities so that the responsibility to uphold the interests of patients does not lie with the individual provider, but it's shared with the institution in which that provider works. But it is in part a responsibility of the individual.

In Portugal , for example, physicians are required to register refusals and then are prohibited from counseling patients seeking elective abortion. The law there states that the health system is obligated to ensure that patients receive care within a time frame responsive to patients' needs.

In the end the question of conscience presents important challenges for professional ethics and public policy. As the Council moves forward, I encourage you to do so acknowledging the nuance of balancing and with an eye not just on the integrity of health professionals but on the asymmetry of the patient/physician relationship and the vulnerability and fragility of patients who request our help.

Thank you very much. [. . . H. Brody]

Notes

The President's Council on Bioethics was appointed by President George W. Bush and operated from 2001 to 2009.

Source: Archived transcript of the session.

The President's Council on Bioethics Thursday, September 11, 2008 Session 3: Conscience in the Practice of the Health Professions

Notes

The President's Council on Bioethics
Thursday, September 11, 2008
Session 3: Conscience in the Practice of the Health Professions